Texas Takes a Positive Step for A&E Standard of Care

Colleen Palmer, A&E Risk Manager

There is great news from Texas for architects and engineers regarding the professional standard of care.  As of September 1, 2021, Chapter 130.0021 of the Texas Civil Practice and Remedies Code appropriately defines the standard of care for architects and engineers.  The Code states that a contract related to the construction or repair of an improvement to real property “must require that the architectural or engineering services be performed with the professional skill and care ordinarily provided by competent architects or engineers practicing under the same or similar circumstances and professional license.”  This is consistent with the common law standard of care and industry standard agreements.  Importantly, the Code prohibits parties from contractually requiring a “different” (i.e., higher) standard of care and any such different standard of care provision “is void and unenforceable”.  Sec. 130.0021(b)(1).

Interestingly, the Code “applies to the performance of the architectural or engineering services” which raises the question as to whether the protections apply to other design professionals.  Sec. 130.0021(b)(2). Despite this progress in Texas law, architects and engineers must continue to diligently monitor and negotiate their contracts and should not rely solely on the Texas Code to shield them from bad contract language.  While the Code should provide protection against onerous standard of care language, the Code may be revised in the future, possibly resulting in less protection at the time a claim is made.  There is often a 2-3 year time gap between the execution of a professional services agreement and a claim on a project.  The current law may not be the law in effect at the time of a claim and, therefore, may not protect an architect or engineer against a poorly drafted standard of care provision with the same vigour as the current law.
 
Architects and engineers should be encouraged by the Texas Code, but should not let down their guard when negotiating their contracts.  As noted by Attorney Matthew Ryan, partner at Allensworth in Austin, Texas: “By itself, this is a very good development for design professionals in Texas, snuffing out the possibility of a higher (and possibly uninsurable) standard of care—but the careful practitioner will look to the much broader available toolkit of contractual clauses that can help dramatically limit exposure to claims.”
 
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About the author:

Colleen joined Beazley in December 2007 as an A&E Risk Manager and is based in the New York office. Before joining Beazley, Colleen was a practicing attorney in Boston, MA, where she focused on assisting architects and engineers. She specialized in providing risk management services to design professionals on a nationwide basis, including conducting risk management seminars and advising on contractual issues. Colleen earned her Bachelor of Science degree in Biology from Cornell University and her Juris Doctor, cum laude, from the University of Miami School of Law.

Colleen Palmer
Colleen Palmer

Risk Manager - A&E

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