Liability for the Actions of Others

Sometimes clients ask design professionals to engage another entity, often to facilitate the client’s procurement process so that the client does not have to set up a new contract with a new vendor. The risk for the design professional is that they have vicarious liability for the conduct of the subconsultant, which is, in this case, an entity the design professional did not select and does not necessarily have control over.

An insured recently asked me about a proposed client requirement that the insured engage the fabricator responsible for installing the end-product directly. The insured’s services for the client involved designing the systems and reviewing the shop drawings prepared by the fabricator to check that the product was in substantial compliance with the design intent. This particular scenario meant that the design professional was now vicariously liable for the proper fabrication and installation of the end-product; an exposure that is outside the scope of coverage of the professional liability policy.

Unless design professionals are willing to take on this type of exposure as a business risk (making sure that the compensation matches the additional risk), the best approach is to require that client-selected vendors, and especially fabricators and installers, contract directly with the client so the design professional is not vicariously liable for their actions.

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