• To Certify, or Not to Certify...? No Longer the Question for California Designers California Statute Expands Designers' Protection from Guarantee/Warranty Claims
  • August 14, 2003
  • Law Firm: Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP - San Francisco Office
  • Starting in 2002, California architects join the state's engineers and land surveyors in having a statute define their "certifications" as professional opinions -- clarifying that a certification is not a guarantee or warranty. For the past 15 years, only engineers and surveyors could point to a statute that defined what their certifications meant, now architects can, too.

    Without the Statutes, a Designer's Certification is Open to Possible Interpretation as a Guarantee or Warranty.
    Design professionals come under pressure from many sources to provide certifications. Public entities frequently require that the designer certify that a contractor constructed a project in conformance with the approved design. Similarly, lenders and owners frequently require certification that the contractor followed the design intent, and regulators seek certificates that projects meet code or other legal requirements. These certifications can take various forms, but generally all require the design professional to certify aspects of the design itself, or regarding work performed by others to execute the design. The designer may have observed the work during construction, but rarely would the designer have actually supervised or controlled the construction process.

    Sometimes owners or lenders refuse final payment to designers who refuse to execute an owner-drafted certificate. Some clients condition initial award of the design contract on the designer's agreement that it will execute a prescribed certificate upon completion. Designers often are caught between owners or building officials seeking certifications that a court might interpret as a guarantee or warranty promise, and professional liability insurance that expressly does not apply to any guarantee or warranty promise given by the designer.

    In litigation concerning completed projects, persons who had received a designer's certification frequently allege it constitutes a guarantee of the work, of code compliance, or of contractor performance. And third parties, such as subsequent buyers, sometimes claim they reasonably relied on a designer's certification given to a developer, lender, or code official, and which appeared to offer a guarantee.

    The Statutory Definition Removes Any Ambiguity: a Designer's "Certification" Is Not a Guarantee or Warranty
    In 1986, California's professional engineers and land surveyors secured passage of Business & Professions Code section 6735.5, which defines the words "certify" and "certification" for these professionals.

    6735.5. The use of the word "certify" or "certification" by a registered professional engineer in the practice of professional engineering or land surveying constitutes an expression of professional opinion regarding those facts or findings which are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied.

    This statute removed any ambiguity surrounding the words for those professionals; no one could allege that their certifications amounted to a guarantee or warranty because - by statute - their certifications were only professional opinions. But this statute does not apply to architects, and for years certifications by architects remained open to interpretation as possibly offering a guarantee or warranty. Indeed, since the legislature omitted architects from the statute, one could have argued that the legislature intended that the public could regard an architect's certification as carrying more than a professional opinion.

    But now, 15 years after passing the original statute for engineers and surveyors, the legislature has passed a similar provision for architects. On October 10, 2001, Governor Gray Davis signed S.B. No. 724, adding the following new section to the Business & Professions Code, effective January 1, 2002:

    5536.26. The use of the words "certify" or "certification" by a licensed architect in the practice of architecture constitutes an expression of professional opinion regarding those facts or findings that are the subject of the certification, and does not constitute a warranty or guarantee, either expressed or implied. Nothing in this section is intended to alter the standard of care ordinarily exercised by a licensed architect.

    In California, Designers Wishing to Avoid Giving a Guarantee or Warranty Need Not Avoid Certifications.
    In California, an architect, engineer or surveyor that wishes to avoid giving a guarantee or warranty regarding its professional practice should embrace "certification" language. The State's Business & Professions Code provides protection to designers using this language, contrary to conventional advice from risk managers and insurers who work with designers in other jurisdictions. The general advice against "certification" language reflects the fact that most jurisdictions do not define "certification" by statute, and in those jurisdictions a designer's certification may indeed amount to a guarantee or warranty.

    A Few Cautions...
    These are California statutes; they will not protect architects, engineers, or land surveyors from claims brought in other states or under the law of other jurisdictions. Even for a project in California, a designer should look closely at any "choice of law" provision in an agreement. If the contract states that the parties elect to apply another jurisdiction's law, these Business & Professions Code protections may not shield the designer if, in a later dispute, any party alleges that the designer's certification was a guarantee or warranty. If a California designer must provide a certification, and the agreement states that that another jurisdiction's law applies, the designer should consult with its attorney to determine what "certification" means under the chosen law. And if the project is in California, but the contract specifies another state's law, have your attorney review the certification to either insert language: appropriate for the chosen jurisdiction; or that makes the certification expressly interpreted under California law, regardless the contract's choice of law provision.

    Also, designers should remember that a certification regarding any matter other than one occurring "in the practice of" the designer's profession may still constitute a warranty or guarantee under California law. The Business & Professions Code sections discussed in this Alert apply only to certifications provided "in the practice of" the named professions, not other certifications a designer may give. Examples of possible other certifications include ones regarding the payment of consultants, employment of personnel, maintenance of insurance, or possession of certain licenses.