TZL 1326 (web)

WILLIAM QUATMAN, from page 11

there was a push to avoid using the word “approved” on shop drawing stamps with the logic that if design profes- sionals avoided using the “A-word,” they might not have liability for action taken by them on submittals. However, time has shown that courts often equate a “Reviewed” stamp with “Approved,” regardless of the wording used on the stamp. In a recent 2017 Iowa case, the engineer’s stamp “Furnish as Submitted” was held equivalent to “Ap- proved.” In the 1984 Hyatt Skywalk case, discussed below, the Administrative Law Judge found that, “Although the contract documents require that shop and erection draw- ings be submitted to the engineer of record for ‘review and approval,’ testimony at trial indicates that engineers never use the term ‘approved’ when indicating review and approval of these drawings. This custom apparently rests upon the dubious basis that most engineers’ insurance car- riers have directed that the word ‘approve’ not be used.” That judge ruled that the engineer’s “review stamp” on shop and erection drawings, “functionally indicates both review and approval.” NO ACTION TAKEN. A design professional’s failure to take action on a submittal does not necessarily mean “approval,” how- ever, as one court ruled in 1946. The contract stated that shop drawings submitted without being required would be returned “without action.” The court held that the subcon- tractor wrongly assumed that shop drawings returned with no action were “approved.” Today, AIA’s General Condi- tions permit architects to request “informational” submit- tals, without the need to approve those documents. A201, par. 3.12.4 (2017). Contractors should not assume that the absence of action on such submittals means “approval.” THE HYATT SKYWALK CASE. No single event has had such a dra- matic effect on the construction industry as did the col- lapse of the Hyatt skywalks in 1981, in which 114 people were killed and over 200 more were injured. In the wake of this disaster, the industry engaged in a decade-long review of the entire process of shop drawings and design delega- tion. The Administrative Law Judge’s 442-page opinion in this case found violations of the state licensing laws suffi- cient to permanently revoke the licenses of two engineers. The engineers appealed and lost, with the Missouri Court of Appeals ruling that the reviewing engineer was aware of a design change made by the steel fabricator, as reflected on the shop drawings, but that engineer did not review the redesigned connection for structural integrity, a willful act with wrongful intention, constituting “gross negligence.” As a direct result of the Hyatt skywalk disaster, and nation- al attention on the shop drawing review process, the 1987 edition of the AIA General Conditions added four new disclaimers of what the architect’s approval “is not.” The 1997 edition carried forward the expanded language, with an added section related to design-build components and more protection for the architect. AIA A201, par. 3.12.10.1 (2017); See also, B101, par. 3.6.4.3 (2017). CONCLUSION. While there have not been any major lawsuits in recent years over shop drawings, the topic remains one of potential liability for design professionals. Good contracts can help, but timely and thorough reviews of shop draw- ings are, perhaps, the best defense. WILLIAM QUATMAN, FAIA, Esq., is general counsel and senior vice president at Burns & McDonnell Engineering Co. He can be reached at bquatman@burnsmcd.com.

not liable for the deaths of two workers and the injury of another allegedly caused by negligent approval of shop drawings for steel erection because, under the AIA General Conditions, the contractor, not the architect, was responsi- ble for temporary field connections and for the means and methods of construction. DOES APPROVAL SANCTION A DEFECTIVE SUBMITTAL? That question has been answered differently in various cases. In a 1977 case, the specifications called for “solid wood doors” but the contractor supplied “particle board doors.” The court held that the architect’s approval of the shop drawing did not sanction the use of nonconforming doors based on contract language which defined the architect’s “approval.” Like AIA’s A201, the contract stated that the contractor was not relieved of responsibility for deviations from the contract requirements by the architect’s approval of shop drawings unless the contractor had notified the architect of the deviation and the architect had given specific writ- ten approval of the deviation. Such contract language may deflect liability from the design professional. For example, in a 1995 case, the court held that the engineer’s stamp, which stated that “review does not relieve the contrac- tor from complying with all requirements of the contract documents,” meant that the contractor was liable for the failure of certain post-tensioning components, and that the engineer’s approval did not waive the original contract requirements. DELAYS IN APPROVAL. Some of the lawsuits over shop draw- ings relate to project delays due to late action on submit- tals. These cases meet with mixed results. For example, in a 1977 case, a contractor sued the project architects to recover for increased costs due, in part, to negligent and tardy approval of shop drawings. Likewise, in a 1995 case, a subcontractor sued the project engineer for costs aris- ing from rejecting the sub’s initial shop drawings and in preparing new shop drawings, when the original drawings complied with the contract documents. In a 1989 case, an architect was held liable to a contractor for delay damages arising, in part, from the architect’s negligent interpre- tation of contract documents and its responses to shop drawings. However, in a 1988 case, an engineer was found immune from the contractor’s suit for delayed approval of shop drawings based on a contract clause that said the engineer owed no duty to the contractor. Since delayed reviews can hold up fabrication and cause schedule delays, design professionals need to track their response time. The AIA publishes a form to track review of shop drawings and other submittals. AIA G712 (1972). In states that have adopted the “economic loss doctrine,” pure delay claims caused by negligent review of shop draw- ings cannot be made by a contractor or subcontractor against a design firm with whom they have no contract. In a 1989 case, a contractor that had no direct contract with the engineering firm was barred from suing for delay dam- ages for negligent review of shop drawings under that doc- trine. Also, a “no-damages-for-delay” clause in a construc- tion contract was found to bar claims related to late shop drawing reviews in a 2010 case. SHOP DRAWING STAMPS. There is a wide variety of wording used on shop drawing stamps. Especially during the mid-1980s,

THE ZWEIG LETTER January 6, 2020, ISSUE 1326

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