09/18/2015: by Michael Shilale, AIA, LEED, CHPC
I have been a licensed architect in NYS for 28 years. Passionate and idealistic, I have always believed that architects can help make a better world and didn’t really worry too much about my own financial future. Never did I imagine that a dark cloud of uncertainty would hang over our noble profession for our entire lives.
Recently I was reviewing my financial plan with an advisor. He asked me what my expenses might be for professional liability insurance in retirement. I was surprised to learn that it is not possible to purchase professional liability insurance in retirement in excess of the 3-5 year tail offered on most policies. Since I always hoped to live more that 3-5 years after I retire, I was somewhat concerned.
I began asking some friends who were doctors and lawyers what their long term liability was. I was interested to learn that, for doctors in New York, the Statute of Limitations for Medical Malpractice is 2 years and six months. For lawyers, the Statute of Limitations for Legal Malpractice is 3 years.
I looked at other professions and found that they too had a reasonable Statute of Limitations for civil negligence. If you manufacture a product that hurts or kills someone, the Statute of Limitations for Product Liability is 3 years. If you drive your car into someone’s living room, your Statute of Limitations for Property Damage is 3 years. Slander is 1 year, Trespass is 3 years; heck even Wrongful Death has a Statute of Limitations of only 2 years.
You get the picture and those are just the civil issues. What is even more disturbing, as you may already know, most criminal laws have a Statute of Limitations. Robbery has a Statute of Limitations of 5 years, Larceny has a Statute of Limitations of 2 or 5 years; Assault, 2 or 5 years (Depending on the facts of the case); Burglary, 2 or 5 years (Depending on the facts of the case).
There is no Statute of Limitations for murder in New York State.
So it seems that only Architects, Engineers and Murderers have a lifetime of looking over their shoulder for a potential day of reckoning.
AIA National does a nice job creating a compendium each year of the Statute of Limitations and Statute of Repose laws in each state (the difference between the two is important but irrelevant to our discussion here). Once again NY is at the top, or at the bottom, of that list depending on your perspective. As the only state, other than Vermont, that has no Statute of Limitations on third party lawsuits for architects and engineers, NY once again leads our nation in a category of dubious distinction.
The AIA compendium also does a good job of detailing the issues, making a strong argument why this situation is unfair, and referencing all the statutes that exist nationwide. It states, “Because there is no estimated shelf-life for a building, there is a need to define a period of time after which the architect can no longer be held liable for personal injury or injury to property. State legislatures typically have found that that time period should be tied to when the architect no longer has control of the property, deficiencies in the design have been or should have already been discovered, and/or any injury to persons or property is most likely to have been caused as the result of something the architect did (or failed to do).” AIA’s report goes on to state, “Without legislation to protect design professionals from unlimited liability, it might be possible for an architect to be sued for an injury suffered in or around a building that was designed many years prior, even when the injury is a result of improper maintenance or other causes beyond the architect’s control.”
It seems our state leaders have either ignored the issue or have been impotent to affect positive change.
After ten years or so in private practice I joined the local AIA board of directors. I served as president of the Westchester/Hudson Valley Chapter and went on to serve two terms as Vice President of Government Advocacy at AIA New York State. From my earliest memory with AIA in New York, a statute of limitation/repose on third party lawsuits was part of our legislative agenda - and it seems for over two decades nothing has been done about this seemingly obvious inequity. Architects tend to be naïve and not well suited to petitioning our government for redress. Much of our legislative agenda is geared toward our clients or our communities, not necessarily our members. While these are noble pursuits, many can argue our legislative impact over the last decade or so has been mostly impotent.
While NYS has undergone groundbreaking transformation, in areas never before thought possible, our agenda has languished. Under the recent Cuomo administration (Andrew not Mario) we have seen a property tax cap, teacher evaluations, and pension reform. These changes were previously thought to be legislatively impossible. Change is in the air. Presently, the former speaker of the assembly and the former Senate majority leader are under indictment - it may now be the time to act. I am not sure what the Statue of Limitations is for the crimes they allegedly committed; however, I am sure there is one. We should demand fairness. No profession has the lifetime liability exposure that architects and engineers endure. I urge our leadership and all our members to act.