Short answer
Architect liability for MEP engineer design often starts with a phone call from the owner. When you hire the MEP engineer, the owner usually comes to you first, even if the engineer’s design is the issue. Your professional liability may respond for work you are legally responsible for, but it does not insure your consultant. Report the situation to your insurer as a potential claim before it escalates, notify your consultant in writing, and avoid calling it a “design error” in writing while the facts are still being sorted out. Whether a policy responds depends on its wording and the facts.
Why the architect gets the call
The owner’s contract is with the prime. When the architect is the prime, the owner holds the architect responsible for the whole design team. The architect is also the person the owner talks to most, so complaints about the building land there first.
This is true even when the architect did not design the system. A comfort complaint about HVAC reaches the architect because the architect hired the engineer. Many firms are surprised by this, especially when the consultant is well established.
Legal responsibility depends on the contract and the facts. Ask your attorney how your agreement allocates responsibility for consultants.
How a comfort complaint becomes a claim
These situations often escalate in steps. A typical sequence looks like this:
- The building opens, and the owner reports that spaces will not hold temperature or humidity on the hottest days.
- The contractor says the system was “under-designed.”
- The owner repeats the phrase “design error” in writing.
- Someone mentions attorneys.
At step four, the situation may be a potential claim. A firm that reported at step one or two has more room to work with its insurer. Waiting can create problems on a claims-made policy.
Words matter: “design error” vs. “design conditions”
A design error is a mistake, such as a missed load or a math error. Designing to a recognized standard that later proves tight in extreme weather is a different conversation. The ASHRAE standards overview explains how recognized standards are published.
Everyone in a dispute tends to use the word “error.” Once it appears in an email, it can follow the firm into later discussions. Keep your own written communication factual. Describe what the system is doing and what the design conditions were. Leave conclusions about fault to the process.
When the fix looks simple
Teams often agree on a technical fix quickly. A third-party engineer may recommend a larger unit. The disagreement then shifts to who pays for the bigger equipment.
Some owners may see the larger unit as an upgrade. A fix can also raise questions about betterment, which means the owner receives something better than the original design called for. Paying for a fix before your insurer agrees can also cause problems. Talk to your insurer before you commit to any repair or payment.
Report it as a circumstance, even if it may be nothing
Many firms believe they only call their insurer when someone files a lawsuit. A circumstance is a situation that could lead to a claim. Reporting it early lets the insurer guide the conversation and may preserve options under a claims-made policy.
Our guide on how to write a claim notice explains what to include. When a complaint is still informal, a short and factual notice works best.
What to do this week
Take these steps while the situation is still early:
- Report the situation to your insurer as a potential claim.
- Notify your consultant in writing and ask them to notify their own insurer.
- Collect the basis of design, test and balance reports and all correspondence.
- Keep the owner relationship professional and avoid assigning fault.
- Do not pay for repairs before your insurer agrees.
Your consultant needs their own professional liability policy. Your policy generally does not insure them. Telling them promptly helps their insurer start its own review.
Questions to ask your agent
These questions can guide the conversation:
- Should I report this now as a circumstance?
- How do I notify my consultant?
- Can we keep working with this client on new projects while this is open?
- Does my consultant’s contract require them to carry insurance?
What we see at Hardcover
A long-established architect acting as prime on a surgical center expansion called us when the owner began mentioning attorneys. The architect had hired the MEP engineer, who had designed to a recognized industry standard. Rooftop temperatures on the hottest days still ran well above the design conditions. A third-party engineer recommended a larger unit.
We had the architect report it as a potential claim the same day and make sure the engineer notified their own insurer. The architect told us it was the first time in decades that he had thought of contacting his carrier.
Related questions
It may be nothing, but I wanted to make you aware of a situation that might end up going legal. Should I report it?
Usually yes. Report it as a potential claim or circumstance. Early notice gives the insurer a chance to guide the conversation before the situation escalates.
Everybody keeps using the words “error” and “design flaw.” How should I respond?
Keep your written communication factual. Describe the design conditions and what the system is doing. Avoid labeling the problem while the facts are still being sorted out, and talk to your insurer before you reply.
Am I liable for my MEP engineer’s design?
If you hired them, the owner may hold you responsible. Your policy may respond for work you are legally responsible for, subject to its terms.
Does my professional liability cover my sub-consultant?
Generally it does not insure them. They need their own policy, and they should notify their insurer too.
Should I report a complaint that hasn’t become a lawsuit?
Usually yes, as a potential claim or circumstance. Waiting can create problems on a claims-made policy.
General education, not legal advice. Hardcover is an insurance agency, not a law firm.