Less than two weeks ago, an EF3 tornado permanently changed the landscape of parks, streets, and structures throughout the City of St. Louis. Rebuilding will take time and patience. These events can significantly impact a construction project by causing damage, delays, and potential losses. As I surveyed the local damage to various commercial structures while driving through the city, I contemplated how storm damage to incomplete projects in the city could impact local architects and engineers.
Tornados are often considered “acts of God” or force majeure events. Subject to the terms of construction contracts and addenda, architects should be free of any liability concerns provided they at least met the required standard of care in their design and construction monitoring. An architect could account for certain foreseeable risks in their design depending on the location of the project and other weather events that have impacted the area before. Careful drafting can be a meaningful mitigation tool.
American Institute of Architects (AIA) Contract Provisions also provide insight. AIA clauses may provide for extensions of time, adjustments to schedules, or the allocation of costs related to the event. For instance, B101 Owner-Architect Agreement typically outlines the architect’s scope of services and responsibilities which can impact liability in events like tornadoes. Moreover, indemnification provisions can shift the losses attributable to storms to other contract parties. These provisions could also be used to cap liability. Negotiating a ceiling in those agreements can lead to predictable exposure limits. AIA contracts may allow the owner to terminate the agreement for convenience, which could be relevant after a tornado damages a building. Provisions may also contemplate project suspension and adjustment of fees when a natural disaster strikes.
Additionally, if engineers come under scrutiny for similar reasons, look to the existence of permits issued by local government agencies. After the permit is issued, subcontractors typically commence work in reliance on the engineer’s work and may submit materials to the engineer for approval to confirm they meet specifications. Material substitution can also be discussed and is often agreed upon by the general contractor, owner, and engineer. Carefully documenting these changes benefit all parties involved. Especially when Mother Nature strikes.
In sum, contact your professional liability lawyer immediately after an event like a tornado to review contracts, change order options, and sources of insurance coverage so claims can be made promptly. And, volunteer your time. Your community needs you.
