A developer filed suit against an engineering firm, two licensed engineers and one engineer intern. The intern was dismissed from the suit on the basis that as an intern the individual was immune from suit because he was an intern being supervised by licensed engineers and did not himself sign and seal relevant plans, or otherwise use any professional designation in connection with the project. The court does not discuss the merits of the suit against the two licensed individuals but it should be noted that in Florida, to protect individual engineers against liability it is important to include in the contract the following sentence, in all capital letters, and 5 font sizes larger than the text in the balance of the contract. “PURSUANT TO FLA.STAT.ANN. § 558.0035, AN INDIVIDUAL EMPLOYEE OR AGENT MAY NOT BE HELD INDIVIDUALLY LIABLE FOR NEGLIGENCE.”
Sunset Beach Investments, LLC v. Kimley-Horn and Associates, Inc., 207 So.3d 1012 (Fla. App. 2017).
The engineer intern moved for summary judgment on be basis of immunity from suit because he was not a licensed professional and was merely an employee of Kimley-Horn. His affidavit stated he had never been a professional engineer licensed in any state and is not subject to regulation in the State of Florida.
Under Florida common law, “where the negligent party is a professional, the law imposes a duty to perform the requested services in accordance with the standard of care used by similar professionals in the community under similar circumstances.” The issue in this appeal said the court, turns on the definition of “professional” and specifically whether an engineer intern is a “professional” for purposes of a professional negligence claim.
The appellate court concluded: “We conclude that a licensed engineer could be subject to a claim for professional negligence, as engineering is a profession which requires special education, training, skill. But [the intern] did not satisfy the requirements to be a licensed engineer. Instead, he was an engineer intern, which the legislature classifies differently from a licensed engineer.”
The plaintiff attempted to get around the requirement that the individual must have “special education” by arguing that this was a subjective determination to be made by the court. The court explained that that test would require courts to decide what qualifies as “special education,” what qualifies as “training,” and what is acceptable “experience.” At a minimum, concluded the court, “in a profession where a license exists, the existence of a license is a valid barometer for determining whether a person is classified as a professional.”
The Florida legislature did not include “engineer intern” within the definition of “engineer.” The statutory definitions, said the court, “clearly indicate that being an ‘engineer intern’ does not make a person an engineer.”
For these reasons, the court concluded that the intern was immune from suit.
Comment: As stated in the introductory paragraph of this article, the court didn’t discuss the merits of the suit against the two licensed individuals. In Florida, to protect individual engineers against individual liability it is important to include in the contract the following sentence, in all capital letters, and 5 font sizes larger than the text in the balance of the contract. “PURSUANT TO FLA.STAT.ANN. § 558.0035, AN INDIVIDUAL EMPLOYEE OR AGENT MAY NOT BE HELD INDIVIDUALLY LIABLE FOR NEGLIGENCE.”
This is necessary because previous Florida court decisions have found that the individual engineers may owe an independent duty of care to the client and third parties. One problem that can create is that if the engineering corporation has a good contract with reasonable allocation of risk, including a limitation of liability clause, that might not apply to the individual employee that is sued by the client for breach of an independent duty of care.
About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 20, No. 9 (Oct 2018).
Copyright 2018, ConstructionRisk, LLC
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