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General contractor (GC) filed a joinder complaint to join an architect in a suit brought by a subcontractor against the GC based on GC’s failure to grant a change order that was alleged required due to defective plans and specifications. The GC didn’t submit a certificate of merit with its joinder complaint against the architect. Based on a state statute requiring a certificate of merit be filed with, or within 60 days of filing, negligence complaints against design professionals, the architect was granted summary judgment by the trial court. This was reversed on appeal, with the court holding that the original complaint by the construction subcontractor included allegations of negligence in the plans and specifications of the architect. The negligence allegations in the sub’s complaint against the GC and the GC’s complaint against the architect were related. Because they were related, it was not necessary for the GC to file a certificate of merit regarding the same or related negligence claims that had first been raised by the construction subcontractor. Kelly Systems, Inc. v. Leonard S. Fiore, Inc. 2018 WL 5629644 (PA Superior Court 2018).

The sub alleged that a mounting system for exterior wall panels was “impossible to construct” due to defects in the architectural drawings. It proposed a solution for $225,000, and the GC refused to grant a change order for the changed work. The sub went ahead and continued to work on the project and included its proposed solution to the allegedly defective designs. It then filed suit against the GC to recover additional costs of implementing its solution.

The architect in question was under subcontract to the GC and not to the project owner. Although the decision doesn’t explain it, this contract for the exterior panels (possibly a curtain wall) must have been a design-build or design-assist element of the overall project. The GC was responsible for designing the mounting system (through an architect subcontractor) as well as for then constructing the walls that would be supported by that system.

In analyzing whether a certificate of merit was required the court determined that the complaint by the sub against the GC was based on breach of contract but that the essence of the complaint was that design plans had been negligently devised by the architect, and then negligently provided by the GC to the subcontractor. The court determined that the GC joinder complaint against the architect was adequate to allege that if the GC was found liable to the sub for negligent plans, then the architect was liable to the GC for having been the one that prepared those allegedly negligent drawings.

The court stated that the GC was not required to admit that the plans were defective in order to pursue its claim against the architect. The court also concluded that the crux of the issue with the change orders will be whether designs relied upon by the subcontractor were defective. And the court found that expert testimony will be needed by both the subcontractor and the GC to prove the design specifications were defective. “The same expert testimony and same evidence will be used to show whether the design specifications were defective and whether a change order should have been granted.”

Because the alleged acts of negligence by the GC against the architect as an additional defendant are related to the acts of negligence alleged by the sub against the GC, the court held that the GC was not required to file a certificate of merit with its complaint against the architect.

 

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. 12 (Mar 2019).

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