Watson, Watson, Rutland/Architects, Inc. v. Montgomery County Bd. of Educ.

Citation559 So.2d 168
Parties59 Ed. Law Rep. 1214 WATSON, WATSON, RUTLAND/ARCHITECTS, INC. v. MONTGOMERY COUNTY BOARD OF EDUCATION, et al. MONTGOMERY COUNTY BOARD OF EDUCATION v. WATSON, WATSON, RUTLAND ARCHITECTS, INC. 1 88-220, 88-273.
Decision Date23 February 1990
CourtSupreme Court of Alabama

Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant/cross-appellee.

Vaughn H. Robinson and Philip H. Butler, Montgomery, for appellees Montgomery County Board of education.

W. Joseph McCorkle, Jr. of Balch and Bingham, Montgomery, for appellee U.S. Mineral Products Co.

Harry Cole and Alex L. Holtsford, Jr. of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, for appellee Dixie Roof Decks, Inc.

Calvin M. Whitesell of Whitesell & Lewis, Montgomery, for amici curiae Alabama Council of the American Institute of Architects and the Montgomery Chapter of the American Institute of Architects.

MADDOX, Justice. *

This case arises out of property damage incurred when the roof of Brewbaker Junior High School in Montgomery leaked. The Montgomery County Board of Education (hereinafter "the School Board") filed this action against Bear Brothers, Inc., the general contractor; United States Mineral Products Company (hereinafter "U.S. Mineral"), the manufacturer of the roofing membrane; and W. Murray Watson, W. Michael Watson, and J. Michael Rutland, the architects for the school project. Bear Brothers joined Dixie Roof Decks, Inc. (hereinafter "Dixie"), the roofing subcontractor, as a third-party defendant. The trial court substituted the corporate entity Watson, Watson, Rutland/Architects, Inc. (hereinafter "the Architect"), for the individually named architects.

The School Board alleged negligence and breach of contract against the Architect and breach of contract and breach of guaranty against the Bear Brothers and U.S. Mineral. The Architect filed a cross-claim against U.S. Mineral and Dixie for indemnity in case the Architect were held liable to the Board. The trial court entered summary judgment for U.S. Mineral and Dixie on that cross-claim, holding that a one-year statute of limitations applied to that cross-claim and that the statute barred the claim.

The School Board settled with Bear Brothers and U.S. Mineral for a total of $100,000. At trial against the Architect, the court granted the Architect's motion for a directed verdict as to the School Board's negligence claim, on the ground that the statute of limitations had expired. The breach of contract claim was submitted to the jury, and the jury returned a verdict of $24,813.08 against the Architect. The court entered a judgment based on that verdict.

The Architect appealed from that portion of the judgment based on the verdict in favor of the School Board and from the dismissal of its cross-claim against U.S. Mineral and Dixie. The School Board then cross-appealed from that portion of the trial court's judgment based on the Architect's directed verdict on the negligence claim.

At the center of this dispute is the architectural agreement between the Architect and the School Board; it included the following language:

"ARTICLE 8. Administration of the Construction Contract. The Architect will endeavor to require the Contractor to strictly adhere to the plans and specifications, to guard the Owner against defects and deficiencies in the work of Contractors, and shall promptly notify the Owner in writing of any significant departure in the quality of materials or workmanship from the requirements of the plans and specifications, but he does not guarantee the performance of the contracts.

" * * * *

"The Architect shall make periodic visits to the site and as hereinafter defined to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an Architect, he shall endeavor to guard the Owner against defect and deficiencies in the work of the Contractor. The Architect shall not be required to make continuous on-site inspections to check the quality of the Work. Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, unless spelled out in the Contract Documents, and he shall not be liable for results of Contractor's failure to carry out the work in accordance with the Contract Documents.

" * * * *

"The Architect shall not be responsible for the acts or omissions of the Contractor, or any Subcontractors, or any of the Contractor's or Subcontractor's agents or employees, or any other persons performing any of the Work."

The following issues respectively have been argued orally and in the parties' briefs:

On the Architect's appeal:

(1) Does the exculpatory language in the architectural agreement absolve the Architect from liability for damages arising from the failure of the contractor to follow the plans and specifications?

(2) If the answer to Issue 1 is no, then is the Architect entitled to cross-claim for indemnity against the roofing subcontractor and the manufacturer of the roofing membrane?

On the School Board's cross-appeal:

(3) When did the statutory period of limitations applicable to the school board's negligence claim begin to run?

I

The Architect argues that the exculpatory language in Article 8 of the architectural agreement absolves the Architect from liability to the School Board because all roof leaks involved were attributable to the faulty workmanship of the contractor. The Architect points out that Article 8 provides for two types of inspection services by the Architect; that is, the owner could elect to receive only general site inspections by the Architect, or the owner could elect to pay an additional fee for continuous on-site inspections (known as the "clerk of the works" alternative); the School Board elected not to pay for the second option. 2

This Court has construed language virtually identical to that at issue here, in Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So.2d 99 (Ala.1987). In that case, the contract in question contained the following language:

"The ARCHITECT shall not be responsible for the acts or omission of the contractor, or any subcontractors, or any other contractor or subcontractors, agents or employees, or any person performing any work."

The Court, in Sheetz, stated: "The contract expressly states that Spann is not responsible in any fashion for the acts or omission of the contractor, subcontractors, agents, or employees performing the work." 512 So.2d at 102.

A case analogous to this one is Moundsview Indep. School Dist. No. 621 v. Buetow & Associates, Inc., 253 N.W.2d 836 (Minn.1977), where the contract language regarding inspection duties was virtually identical to that used here; the trial court entered a summary judgment for the architect, and the Minnesota Supreme Court affirmed. The supreme court found it significant that the school district had elected not to obtain continuous supervisory services from the architect through the "clerk of the works" clause. The court held that the contractual provisions "absolved [the architect] from any liability, as a matter of law, for a contractor's failure to fasten the roof to the building with washers and nuts." 253 N.W.2d at 839.

Other courts have also held that similar language absolved the architect from liability as a matter of law. See Mayor & City Council of the City of Columbus v. Clark-Dietz & Associates-Engineers, Inc., 550 F.Supp. 610 (N.D.Miss.1982); Shepard v. City of Palatka, 414 So.2d 1077 (Fla.Dist.Ct.App.1981); Vonasek v. Hirsch & Stevens, Inc., 65 Wis.2d 1, 221 N.W.2d 815 (1974); J & J Electric, Inc. v. Gilbert H. Moen Co., 9 Wash.App. 954, 516 P.2d 217 (1973); contra, Hunt v. Ellisor & Tanner, Inc., 739 S.W.2d 933 (Tex.Dist.Ct.App.1987), in which the Texas court refused to follow the decision of the Minnesota Supreme Court in Moundsview.

The Architect contends that imposition of liability upon it here would be nothing short of a holding that the Architect was the guarantor of the contractor's work.

The School Board responds to the Architect's argument by saying that it has never contended that the Architect should be a guarantor of the contractor's work, but the School Board strongly contends that where a contract is for work and services, there is an implied duty to perform with an ordinary and reasonable degree of skill and care, citing C.P. Robbins & Associates v. Stevens, 53 Ala.App. 432, 301 So.2d 196 (1974). The School Board also argues that its claim was covered under the terms of the agreement because its claim was limited to those deviations from the plans and specifications that should have been obvious to one skilled in the construction industry. According to the School Board, if the Architect's construction of the contract language is accepted, the Architect would not be accountable to anyone for its failure to make a reasonably adequate inspection so long as it made an "inspection," no matter how cursory, on a weekly basis.

The School Board points out that the contract also included the following language:

"On the basis of his on-site observations as an Architect, he shall endeavor to guard the Owner against defects and deficiencies in the work of the Contractor."

____________________

"The Architect shall have authority to reject Work which does not conform to the Contract Documents."

____________________

"The administration of the contract by the Architect is not normally to be construed as meaning the furnishing of continuous inspection which may be obtained by the employment of a Clerk of the Works. However, the administration shall be consistent with the size and nature of the work and must include, at least, one inspection each week, a final inspection, and an inspection at the end of the one year guarantee period shall...

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    ...defects that even the most perfunctory monitoring would have prevented’ ( Watson, Watson, Rutland/Architects, Inc. v. Montgomery County Board of Educ., 559 So.2d 168, 173 (Ala.1990) ); and ‘[a] purchaser simply cannot "[close] his eyes where ordinary diligence requires him to see," and expe......
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1 books & journal articles
  • The Validity of Exculpatory Clauses in Architectural Services Contracts
    • United States
    • Colorado Bar Association Colorado Lawyer No. 25-2, February 1996
    • Invalid date
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