The United States District Court of the District of Maryland Weighs In on the Division of Responsibility between the Structural Engineer of Record and the Engineer with a Delegated Design
Sarah A. Johnson, Esq.
Disputes over the division of responsibility between the structural engineer of record (“SEOR”) and an engineer with whom SEOR has delegated a certain portion of the design (“delegated engineer”) have been the subject of many professional liability claims. However, there are very few cases offering any guidance on the issue. The recent case of Metromont Corp. v. Allan Myers, L.P.1 provides some useful insights as to how courts may approach the topic.
In Metromont Corp. v. Allan Myers, L.P., the United States District Court for the District of Maryland found that the supplier of the component parts of the roof over a reservoir who was delegated the duty of and agreed to design the connections for the roof panels did not have a duty to review or redo the overall design of the entire roof system provided by the architect and SEOR.2 The case involved claims for breach of contract by the supplier against the general contractor and counterclaims for breach of contract, breach of warranty, negligent design, and indemnification by the general contractor against the supplier.3
The subject project involved the delegated design of the connections for a concrete double tee roof supported on inverted tee girders over a reservoir.4 It is a very large structure, nearly seven acres.5 During construction cracking and spalling at the various connection points occurred, which was eventually attributed to the rigid welded connections joining the double tee panels.6
The architect and SEOR designed the roof with rigid welded connections that did not account for thermal forces caused by temperature changes, and expansion joints had to be added to the roof during construction, resulting in increased costs.7 The case analyzed the issue of who was responsible for making the calculations concerning the thermal forces, the supplier and its engineer, or the initial design team.8
The one expert who attempted to place liability on the supplier recognized that any liability of the supplier would be secondary to the architect and SEOR.9 However, he stated the supplier should have known from the word “conceptual” on the drawings that the drawings were incomplete and required further calculations and that the supplier should have known that its delegated responsibility included accommodating the effect of thermal forces.10 Ultimately, however, the court was not convinced and instead found that the supplier’s scope of work did not impose the duty to review or redo the overall design of the entire roof system as supplied by the architect and SEOR.11
In making this determination, the court found the following facts compelling: (1) the SEOR provided the supplier with what was supposed to be an exhaustive list of exterior forces to consider; (2) the supplier’s engineer requested information about the overall forces and whether the maximum potential forces had been supplied, and the SEOR responded that what she needed to design the connections had already been supplied to her; and (3) the supplier was repeatedly told expansion joints were not to be used because of the seismic design.12
The court found that the supplier had a responsibility to design the connections within the generic ideal provided by the drawings and was not tasked with changing the generic ideal or second-guessing the design of the overall system.13 The court concluded that because the supplier followed the specifications, the supplier could not be said to have not performed under its contract simply because the specifications themselves were deficient.14
Accordingly, the court entered judgment against the general contractor for breach of contract in failing to pay the supplier the amounts remaining under the applicable purchase order.15 The court also entered judgment in the supplier’s favor on all of the counterclaims asserted by the general contractor.16 In entering judgment in the supplier’s favor on the negligent design count, the court specifically found that the supplier could not be held liable for failing to calculate thermal loads in its design of the project’s roof members and connections, presumably because the supplier had no duty to do so.17
The Metromont case offers some useful lessons for both the structural engineer of record delegating duties and design to another engineer and the engineer agreeing to a delegated duty and design. First, the SEOR should make certain that it clearly defines the work and duties being delegated to the other engineer and that it provides the delegated engineer with enough information to complete its assigned work and fulfill its delegated duty. If the SEOR fails to provide clear instructions and/or the necessary information, it will likely bear liability for any resulting claims.
Second, the delegated engineer should obtain written instructions as to the portion of the design work for which it will be responsible. The delegated engineer should also raise any questions in writing in a request for information and obtain a written response to those. Obtaining the aforementioned information in writing will help shield the delegated engineer from a claim resulting from the provision of erroneous information by the SEOR.
Third, a seven-acre concrete roof is a non-traditional structure that requires thorough attention to technical challenges, whether delegated design is used or not.
Claims Retrospective: Non-Traditional Projects Create Increased Potential Liability
We have seen an increase in claims arising from non-traditional projects, where the engineering seems to involve experimental or unproven methods, or at least the application of standard engineering methods to a unique set of circumstances. These projects might include the use of new materials, the creation of a new product, or an attempt to create a unique visual aesthetic. While these projects can certainly be exciting and rewarding, it is important to weigh the risks of being involved with these projects at the outset and analyze what—if anything—can be done to reduce potential problems.
Initially, the engineer may want to put serious thought into whether they want to be involved in such a project or if the risks are too large. It should serve as a cautionary sign when another engineering firm has passed on the project or is subcontracting out a particularly complex portion of the project. If another firm has done the benefit-risk analysis and passed on the project or a portion thereof, the considering engineer should spend sufficient time and effort undertaking its own benefit-risk analysis before deciding to proceed.
Another warning sign might be that the client has unrealistic expectations as to the success of the project or the time and expense involved. In these types of projects, the first attempt is often unsuccessful, and the client should understand that increased time and costs is not an infrequent outcome.
Even if the engineer decides the project is worth the risk and has a client who understands the uncertainty of success and potential for increased time and costs, the engineer should not proceed without providing the client with a written document describing the experimental nature of the work and resultant potential for increased time and costs, making sure to also obtain a written acknowledgement of these risks from the client. For any such project, the engineer should consult their local attorney regarding such written documentation.
1 Metromont Corp. v. Allan Myers, L.P., No. DKC 18-3928, 2021 U.S. Dist. LEXIS 145497 (D. Md. Aug. 3, 2021).
2 Metromont, 2021 U.S. Dist. LEXIS 145497 at *25.
3 Id. at *2.
4 Id. at *6.
5 Id. at *5
6 Id. at 8-12.
7 Id. at *1-4.
8 Id. at *4.
9 Id. at *24.
10 Id. at *24-25.
11 Id. at 25.
12 Id. at *25-26.
13 Id. at *27.
14 Id. at *28
15 Id. at *62.
16 Id.
17 Id. at *47.
