My architect made an assumption about a crucial fire wall in a burned-out structure

[Bonnylassie]

Framing out the top of the brick fire wall wasn't specified in my architectural drawings, so the work didn't get done by the rough-framers. The omission was noted in a routine inspection only after the construction was finished. It will cost me $4k to get the work done, but only one carpenter bid it, because the space is "tight" and now it is much more difficult and no one wants to do it. I think the trusses were designed wrong. There is no truss on top of the original brick demising wall; there should be, so it can be framed out to meet building codes. (The original brick wall from 1911 withstood the fire; everything else burned through to the basement.) My architect is claiming he "assumed" the demising wall was present all the way to the roof--in a burned-out structure with no roof requiring totally new trusses and roof. Plan Review approved his plans. Maybe they were rubber-stamped. Two wrongs here. They are both now claiming the "assumption", in risk-management mode. Can an architect, who knew the structure was burned out and needed an entire new roof and trusses, make such an assumption? Am I the homeowner left footing the bill for an architect's omission? I want to go to court; I can't afford to pay the $4k for the work now. I won't pass inspection without the fire wall. Can any architects in this forum give me some insight on what to do? Can the architect point to the Plan Review? Can Plan Review point to me? I am not an architect or structural engineer. Shouldn't the professional be responsible for accuracy on the drawings? He proposed $17.1k for his work; I accepted. That is a lot of money for flawed plans, I believe. Can anyone help me understand.

 

[Yankee Chronicler]

I am an architect, licensed for more than 30 years.

What your chances are in court will depend largely on two things:

1. What your contract with the architect says about his duties and responsibilities; and
2. How competent and responsible other architects in your area are.

Without having any detailed knowledge of either of these variables, I'll say that -- in general -- an architect has a duty to design and to provide construction documents that comply with the applicable building and fire codes. We are not supposed to "assume" things where the presence or absence of those things may affect code compliance.

I'm not sure how a truss or trusses on top of a brick fire wall maintains the continuity of the fire wall. A fire wall is supposed to be continuous from the foundation through the roof, or to the underside of the roof deck IF the roof deck is non-combustible for 4 feet on either side of the fire wall. If the intent is to transition from a brick masonry fire wall to a wood stud and sheetrock assembly through the attic level, whatever the wood stud and sheetrock assembly is must be something that has been tested by an accredited testing laboratory to prove that it can withstand a fire for however long the rating needs to be (1-hour, 2-hours, 3-hours).

Since the architect didn't address this condition in his construction documents, most likely he is now liable for whatever it costs to make the corrections -- sort of. More precisely, if he had shown it correctly you would have had to pay for it, so you should pay to install it later. HOWEVER, as you note, it's more difficult (and thus more expensive) to do it now than it would have been at the time the work was being done and access wasn't as difficult. So what the architect is actually liable for is the difference between what it should have cost and what it's going to cost now. You said it's going to cost you $4,000. If it would have cost $1,500 if performed at the logical stage of the construction, the architect is only liable for the difference of $2,500.

Most architects carry professional liability insurance. Unless your contract with the architect has some strange, non-standard language in it, typically architects (and engineers) are required to perform according to the usual and customary standard of care prevailing in your area. What that means is, his performance is compared to what other qualified architects in your area would have done in the same situation. In court, this often becomes a matter of dueling experts. Your attorney will bring in an architect or two or three who will testify that any reasonable architect would have verified the condition and the extent of the brick fire wall. The architect's attorney will bring in other architects who will testify that any reasonable architect would have assumed that the brick fire wall extended up through the attic. In the end, it will come down to whose experts the judge or the jury thinks are more credible witnesses.

Professional liability insurance is written based on the ordinary standard of care -- which, as I wrote above, is based on what other reasonable architects in your area would do in the same situation. What this means for you, unfortunately, is that even though it seems crystal clear that your architect messed up, if other architects in and around Detroit agree that they would have made the same assumption -- you probably won't recover anything in court.

Can the architect point to the Plan Review?

He can -- and probably will. If your lawyer is any good, that won't fly in court,. The code requires that construction documents show -- "in detail" -- that the proposed work will comply with code requirements. That requirement applies whether or not the plan reviewer notices any problems. The plan reviewer is supposed to question anything that appears incorrect or incomplete, but the fact that a plan reviewer missed something as important as the continuity of a fire wall does not absolve the architect of the responsibility to produce drawings that will result in compliant construction.

Can Plan Review point to me?

Unfortunately, yes. The ultimate responsibility for having a compliant building falls on the owner. In the real world, the owner typically is neither an architect nor a builder, so owners delegate the responsibility first to an architect (for the design and the construction documents) and then to a contractor to build the thing. It's a pass-through.

 

[e hilton]

The architect should pay for the cost to redraw the plans, and maybe for permit and inspection fees. You are responsible for the cost of construction. Think about it … if the detail had been on the plans the contractor would have included it in his bid and you would have paid.

You “might” be able to get the architect to pay for any upcharge due to the difficulty accessing the space.

 

[Bonnylassie]

The architect should pay for the cost to redraw the plans, and maybe for permit and inspection fees. You are responsible for the cost of construction. Think about it … if the detail had been on the plans the contractor would have included it in his bid and you would have paid.

You “might” be able to get the architect to pay for any upcharge due to the difficulty accessing the space.

Re-drawing the plans is moot. Construction was finished before the Inspector said a fire wall was missing. The "cost of construction" I paid to rough-framers to follow the architectural drawings. The drawings were flawed. Had the drawings been correct, the rough-framers would have done the work for the bid amount. The only difference you are missing, is that I would have seen invoice for Type X drywall and more sheets red-tinted fire-rated plywood for the roof. I paid large sum to rough-framers and no detail was listed. They followed the plans. The Plan Review rubber-stamped approval. That is the tragedy. The professional bears the responsibility ? He was paid as a professional. How can he put out bad drawings and be absolved of his professional responsibility ? Is that reasonable? What about due standard of care? Thank you for your posting.

 

[Bonnylassie]

I am an architect, licensed for more than 30 years.

What your chances are in court will depend largely on two things:

1. What your contract with the architect says about his duties and responsibilities; and
2. How competent and responsible other architects in your area are.

Without having any detailed knowledge of either of these variables, I'll say that -- in general -- an architect has a duty to design and to provide construction documents that comply with the applicable building and fire codes. We are not supposed to "assume" things where the presence or absence of those things may affect code compliance.

I'm not sure how a truss or trusses on top of a brick fire wall maintains the continuity of the fire wall. A fire wall is supposed to be continuous from the foundation through the roof, or to the underside of the roof deck IF the roof deck is non-combustible for 4 feet on either side of the fire wall. If the intent is to transition from a brick masonry fire wall to a wood stud and sheetrock assembly through the attic level, whatever the wood stud and sheetrock assembly is must be something that has been tested by an accredited testing laboratory to prove that it can withstand a fire for however long the rating needs to be (1-hour, 2-hours, 3-hours).

Since the architect didn't address this condition in his construction documents, most likely he is now liable for whatever it costs to make the corrections -- sort of. More precisely, if he had shown it correctly you would have had to pay for it, so you should pay to install it later. HOWEVER, as you note, it's more difficult (and thus more expensive) to do it now than it would have been at the time the work was being done and access wasn't as difficult. So what the architect is actually liable for is the difference between what it should have cost and what it's going to cost now. You said it's going to cost you $4,000. If it would have cost $1,500 if performed at the logical stage of the construction, the architect is only liable for the difference of $2,500.

Most architects carry professional liability insurance. Unless your contract with the architect has some strange, non-standard language in it, typically architects (and engineers) are required to perform according to the usual and customary standard of care prevailing in your area. What that means is, his performance is compared to what other qualified architects in your area would have done in the same situation. In court, this often becomes a matter of dueling experts. Your attorney will bring in an architect or two or three who will testify that any reasonable architect would have verified the condition and the extent of the brick fire wall. The architect's attorney will bring in other architects who will testify that any reasonable architect would have assumed that the brick fire wall extended up through the attic. In the end, it will come down to whose experts the judge or the jury thinks are more credible witnesses.

Professional liability insurance is written based on the ordinary standard of care -- which, as I wrote above, is based on what other reasonable architects in your area would do in the same situation. What this means for you, unfortunately, is that even though it seems crystal clear that your architect messed up, if other architects in and around Detroit agree that they would have made the same assumption -- you probably won't recover anything in court.



He can -- and probably will. If your lawyer is any good, that won't fly in court,. The code requires that construction documents show -- "in detail" -- that the proposed work will comply with code requirements. That requirement applies whether or not the plan reviewer notices any problems. The plan reviewer is supposed to question anything that appears incorrect or incomplete, but the fact that a plan reviewer missed something as important as the continuity of a fire wall does not absolve the architect of the responsibility to produce drawings that will result in compliant construction.



Unfortunately, yes. The ultimate responsibility for having a compliant building falls on the owner. In the real world, the owner typically is neither an architect nor a builder, so owners delegate the responsibility first to an architect (for the design and the construction documents) and then to a contractor to build the thing. It's a pass-through.

I so appreciate what you have written. You have done me a good turn. I will use your info gratefully to discuss with the atty. Yes, above the brick firewall on one side is from 1911 showing cement panels extending to roof to complete the firewall, from the original thick brick wall, as you described. That is missing on the other end, with that other side of my home sharing a thick brick wall with a future tenant/owner and no truss built on top of that original firewall (now to be of type x drywall), to extend it up to the totally new roof according to Code. It is an open expanse, pigeons were using it to fly the whole length. There also is no fire-rated plywood to the roof there, 4' on either side. The architect totally forgot that detail with his 3D scanning he opted for as "safer". He knew it was burned out. You have given me a great deal of valuable info to discuss with the atty. I will not be able to hire an atty most likely. I am a Veteran getting free legal advice from a non-profit. If I go to court, only I can say it as it is but it will stress me, I am 76 yrs old. Thank you again.

 

[Joe.B]

Is the building sprinklered? If so, you may be able to achieve code compliance by adding sprinklers in the attic, which may be easier than installing a fire separation.

 

[Yankee Chronicler]

He knew it was burned out. You have given me a great deal of valuable info to discuss with the atty. I will not be able to hire an atty most likely. I am a Veteran getting free legal advice from a non-profit. If I go to court, only I can say it as it is but it will stress me, I am 76 yrs old. Thank you again.

I am a disabled veteran (Vietnam) myself. I am sympathetic to your position. I have acted as an expert witness in several professional liability lawsuits, so I have tried to present the picture as objectively as I can.

The professional bears the responsibility ? He was paid as a professional.

Legally, the ultimate responsibility is always with the property owner. As I explained, when you hire an architect you are delegating the exercise of a part of your responsibility to that architect -- but in the end it's still your responsibility.

How can he put out bad drawings and be absolved of his professional responsibility ?

He is not absolved of responsibility, but his responsibility may be limited by the terms of your contract with him. Is there a written contract? If so, does it address responsibility for errors or omissions in the architect's construction documents?

Is that reasonable? What about due standard of care?

Unless there's something more specific in the written Owner-Architect contract, architects are held to the "ordinary standard of care." As I explained, this essentially means whatever another reasonable architect in your area would do in the same situation.

The bad news for you, unfortunately, is that (IMHO) the ordinary standard of care for architects today is abysmally low. I'm still licensed as an architect but in recent years I have been working as an assistant building official and plan reviewer. What I review on a regular basis makes me ashamed to admit that I am an architect. At least in my geographic area (which is not anywhere near Detroit), it seems that no architect has ever read the part of the building code that says construction documents shall describe "in detail" how the proposed work will comply with code. They just submit the absolute minimum for drawings, and when we reject them as incomplete they generally cop an attitude. It's a sorry situation, but it is what it is.

The "cost of construction" I paid to rough-framers to follow the architectural drawings. The drawings were flawed. Had the drawings been correct, the rough-framers would have done the work for the bid amount. The only difference you are missing, is that I would have seen invoice for Type X drywall and more sheets red-tinted fire-rated plywood for the roof. I paid large sum to rough-framers and no detail was listed. They followed the plans.

You don't know that. Had the attic portion of the firewall been adequately drawn, the framers' price might have been higher. Contractors don't give away labor or materials. They bid based on the work that's shown on the drawings. If anything changes that calls for more labor and/or more materials, they submit a change order request. Regardless of that -- the legal principle is that if the work had been shown you would have had to pay for it. If the work has to be added later, the architect is generally not liable for the full cost. He is not responsible for whatever it would have cost at the time of original construction. He is only liable for the added cost (what e hilton refers to as the "upcharge") for doing the work out of sequence, on a remedial basis.

 

[arwat23]

Can an architect, who knew the structure was burned out and needed an entire new roof and trusses, make such an assumption?

"Can" they? Sure. It's not a particularly wise move most of the time, especially for something like that, but they are capable of assuming things.

My firm makes general assumptions all the time. Again, not usually involving something like a fire wall or structural safety, but there are some things we just can't determine. We usually have a note on our drawings that says something like "if the contractor notices any discrepancy, notify the architect immediately." Basically our way of saying "we can't know all the existing conditions of a structure, so we need to make some assumptions. Once you start demoing or building stuff, tell us if something on the drawings is wrong."

Can the architect point to the Plan Review?

Not typically. Well, they can, but it probably wouldn't work. In most (all?) jurisdictions, a jurisdiction is incapable of approving deficient plans. Even if approved (stamped), that doesn't remove potential liability from the designer, contractor, or owner. That doesn't mean they are liable, but approval isn't a shield.

Am I the homeowner left footing the bill for an architect's omission?

Architects usually have E&O (errors and omissions) insurance to cover these exact situations.

The "cost of construction" I paid to rough-framers to follow the architectural drawings. The drawings were flawed. Had the drawings been correct, the rough-framers would have done the work for the bid amount.

Nobody noticed the error before bidding or during construction? Usually, in my experience, contractors will visit the property and note any discrepancy they find and ask the architect for clarification during the bidding process. Or they'll find something missing during construction and request more info from the architect. I've never met a contractor that would blindly follow an architect's drawings, and imo they shouldn't. Hell, half the time they ignore the drawings.

The Plan Review rubber-stamped approval. That is the tragedy. The professional bears the responsibility ? He was paid as a professional. How can he put out bad drawings and be absolved of his professional responsibility ? Is that reasonable? What about due standard of care?

Again, not a blanket protection. No one is perfect. Architects and Plan Reviewers make mistakes, even relatively big ones like this. That's why professionals usually have insurance that covers this situation.

I've seen "professionals" put out far worse drawings than what you've described. They usually just blame the city or reviewer for being "strict" or "missing something". Just the other week, I saw a set of plans prepared by a Civil Engineer with 40+ years of experience that was so lacking, you'd think they never worked a day in the industry. I'm not trying to excuse that, but that's just my experience in the profession.

If you really want to, you can report the architect to the licensing board in your state. Based on what you've described, I don't think much would result from that, but it's an option.

 

[Yankee Chronicler]

Here's what the Detroit building code says about construction documents:

[A] 107.2.1 Information on Construction Documents. Construction documents shall be dimensioned and drawn upon suitable material. Electronic media documents are permitted to be submitted where approved by the building official. Construction documents shall be of sufficient clarity to indicate the location, nature and extent of the work proposed and show in detail that it will conform to the provisions of this code and relevant laws, ordinances, rules and regulations, as determined by the building official.

[Emphasis added]

This is the architect's legal duty. It's also what the plan reviewers in the building department are supposed to be checking for and verifying, but they're probably under-qualified and over-worked, so it's hardly a surprise that they missed something. Section 104.8.1 of the Detroit Building Code excuses them from personal liability. You might be able to recover something from the municipality's liability insurance -- but it's extremely unlikely. It's not the role or the duty of a plan reviewer to know everything about a proposed piece of construction. The role of the plan reviewer is to review -- the responsibility for providing complete construction documents always lies with the applicant, which is the owner. As I commented above, the owner delegates that part of their responsibility to the architect, but it's ultimately still the owner's responsibility.