Susan M. White Addresses Design Liability Risks for HVAC Subcontractors in Properties Magazine

Frantz Ward Partner Susan M. White explains in Properties Magazine what liability risks HVAC subcontractors may face when assuming a design role under design-assist and performance-based arrangements.

Susan’s “Legal Perspectives” article, “Design-Assist vs. Performance-Based HVAC,” explains HVAC subcontractors’ responsibilities in each type of arrangement, highlights distinct risks presented by each role, and shares strategies to mitigate risk:

Design-Assist Responsibility

The subcontractor shares insights during the design phase, usually working alongside an engineer. Subcontractors in a design-assist role may face liability for the design, even if the contract states they are not responsible.

Performance-Based Responsibility

The subcontractor provides a system that achieves specified performance criteria without a detailed blueprint to follow. This added flexibility and responsibility lead to increased exposure for defective design and installation, which falls more squarely on the subcontractor.

How to Manage Risk

Design liability often falls outside of standard commercial liability insurance policies. Therefore, subcontractors should seek professional liability coverage when providing design services under either model.

The most effective way to mitigate risk is with specific contract language:

For design-assist projects:

• Explicitly attribute design responsibility to the licensed design professional
• Ensure subcontractors are entitled to rely on plan specifications
• Ensure subcontractors are not responsible for errors within those specifications

For performance-based obligations:

• Ensure performance criteria are objective and measurable
• Limit liability where results depend on the work of other parties

Read the full article here.

Susan’s practice focuses on both transactional and litigation matters within the construction industry, providing comprehensive legal support to general contractors, subcontractors, project owners, and suppliers. She is dedicated to providing effective solutions for a wide range of complex legal challenges.

Since 1946, Properties Magazine has been a monthly reporter on development, construction, design, and property management throughout Northeast Ohio.