§ 130.0021.Architect's, Engineer's, or Land Surveyor's Standard of Care

A mandatory contract term, and a rare instance of the Legislature dictating what a commercial agreement must say.

Subsection (a): a construction contract for architectural, engineering or land surveying services — or a contract for construction or repair that contains such services as a component part — must require that the services be performed with the professional skill and care ordinarily provided by competent architects, engineers, or land surveyors practicing under the same or similar circumstances and professional license.

That is the common law standard of care, written into the contract by statute.

Subsection (b) supplies the sanction, and it does two things. A provision establishing a different standard is void and unenforceable; and the ordinary standard applies to the performance of the services.

So the clause is not merely struck out, leaving a gap — the statutory standard fills it.

The problem this addresses is the heightened standard clause. Owners and their insurers have long sought terms requiring the highest standard, or work free of defects, or compliance with a warranty of fitness.

Those clauses are difficult for a design professional in a specific way: professional liability policies insure negligence, and a contractual promise to meet a higher standard is generally uninsured. A firm accepting one is exposed personally for the difference.

Subsection (c) makes the section escape the owner exemption that limits most of this chapter — so the standard-of-care rule applies to contracts with owners, which is where these clauses originate.