For the Client: ADA Certifications and Indemnity Obligations

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October 2009

COMMUNITIES: PRIVATE PRACTICE
For the Client: ADA Certifications and Indemnity Obligations

A basic tenet of U.S. law is that a professional services provider is responsible for rectifying harm to its client caused by the professional's negligence. This simple precept is, appropriately, the basis of professional liability insurance coverage.

The Americans with Disabilities Act (ADA) became law in the U.S. on July 26, 1990. The purpose of the act is to include persons with disabilities in mainstream public life and to provide them with opportunities for full participation in society. Title III of the ADA is of special importance to design professionals. Title III requires that owners and operators of all new public accommodations be fully compliant with the ADA's Accessibility Guidelines (ADAAG). Title III also requires that owners and operators of existing facilities that were in place before the ADA was passed to "remove barriers" to generally bring the facility into compliance with the ADAAG if the removal of barriers is determined to be "readily achievable" without "undue hardship" on the property owner.

Property owners are primarily liable for noncompliance with the ADA. Design professionals may also be at risk for noncompliance with the ADA. An aggrieved party will look to the property owner for responsibility, and, in case of a violation, the owner may have a cause of action against the design professional who fails to design in accordance with applicable laws and codes or negligently interprets the regulations. This, of course, is no different from a design professional's duty to design in compliance with any applicable code, standard, rule, or regulation. Liability will certainly lie, however, with the design professional who provides an express warranty or signs a certificate of compliance representing that the ADA's requirements have been met when they have not.

The greatest risks for design professionals from the ADA requirements, however, are not from the technical regulations or the need to use professional judgment. They are the risks of accepting contract language that takes away the protections courts afford to design professionals.

There are three main dangers in contractual obligations that would increase a design professional's exposure and may result in no professional liability insurance coverage. The first is a change in the standard of care. Some clients seek to shift risks to design professionals by providing that a design professional will produce a perfect result in design and in the embodiment of that design in the constructed project. In most cases a design professional is not compensated for assuming such an additional, and often uninsurable, risk.

The second danger is express warranty and indemnification provisions. An express warranty is a promise that the result will meet expectations, and it creates a duty for the design professional not otherwise imposed by law. No design professional can guarantee that a new design or a renovation will meet all ADA requirements. The decisions to be made are the responsibility of the project owner or user. Thus, an express warranty or guarantee, and the contractual commitment to indemnify the client for the unfulfilled expectations, create an uninsurable exposure.

The third danger to design professionals is the request for an unqualified certification. Certifications may, by virtue of the representations contained in their provisions, result in additional liability exposure and involve possible uninsurable express warranties and guarantees of conditions beyond the control of the design professional.

Decisions on how best to achieve compliance are appropriately those of the project owner or user.

The ADA's provisions are subjective and open to interpretation even though the regulations on accessibility standards are objective and immediately determinable. The design professional involved in a project should seek direction from the client in interpreting such provisions as "undue hardship" and "readily achievable" and resolving conflicts with other codes and regulations. And they must remember that their services are only one element of a property owner or user's compliance activities. Clients should have an attorney interpret the applicability of the law to their operations and a financial advisor to assist in the determination of "readily achievable" and "undue hardship."

By remembering that design professionals make recommendations based on their knowledge and judgment and that they cannot guarantee compliance with all of the ADA's Title III requirements, design professionals can provide valuable professional services while avoiding uninsurable risks and unreasonable liabilities.

In summary, design firms involved in ADA work must remember the following:

  1. Don't throw away the basic contract principles that a professional must understand in providing services.
  2. Don't make decisions for the client and don't make recommendations for the client's decision making that extend beyond the firm's expertise and into areas of finance and law.
  3. Don't create a situation of unfulfilled expectations on the part of the client so that the client thinks the firm will solve any and all problems. 

It is important that design firms do not substitute their knowledge of ADA Title III for the legal and financial analysis that a building owner must employ. ADA compliance surveys represent only recommendations based on that special knowledge of the design professional and the information available to the design professional from the client and the survey itself. Again, the design professional must not step into the client's shoes. Decisions on how best to achieve compliance are appropriately those of the project owner or user.

This article was contributed by Victor O. Schinnerer & Co. Inc., the managing underwriter for the CNA/Schinnerer Professional Liability Insurance Program.

This article is based solely on Schinnerer's experience as risk consultants and may not be relied upon as legal advice. Legal matters should be reviewed with a qualified advisor.