Design Professionals Liability Limitation Under Chapter 558 of the Florida Statutes
Written By R. Scott Moore, Esq.
Florida law provides design professionals the opportunity to limit their liability under §558 of the Florida Statutes. The business entity would remain liable, up to the full value of its property, for the acts and omissions of its employees, but if the conditions of Fla. Stat. §558.0035 are met the entity can insulate its employees from personal liability. This exclusion for liability is predicated on certain conditions.
First, a business entity must provide design services through a written contract. Business entity for purposes of Fla Stat. §558.0035 means any corporation, limited liability company, partnership, limited partnership, proprietorship, firm, enterprise, association, self-employed individual, or trust, whether fictitiously named or not, doing business in Florida. As written the definition does not include a sole proprietorship.
Second, the contract does not name the individual employee or agent who will perform the professional services as a party to the contract.
Third, the contract must include a prominent statement, [font that is 5 points larger than the balance of the contract] that the design professional may not be held individually liable for negligence. For example:
“PURSUANT TO SECTION 558.0035, F.S., AN INDIVIDUAL EMPLOYEE OR AGENT OF DESIGNER MAY NOT BE HELD INDIVIDUALLY LIABLE FOR NEGLIGENCE ARISING OUT OR RELATED TO THIS AGREEMENT AND THE SERVICES PROVIDED.”
Fourth, the business entity maintains any professional liability insurance that is required under contract.
Lastly, the claimed damages are solely economic in nature and do not extend to personal injuries or property not subject to the contract.
1) Any damages are solely economic in nature and the damages do not extend to personal injuries or property not subject to the contract.
By meeting the conditions required in Fla. Stat. §558.035 the Florida legislature is allowing a business to limit the professional liability to the business entity solely.
We have encountered these limitation of liability provisions in professional services contracts for design, engineering, surveying and geotechnical service contracts routinely. We recommend that businesses offering professional services consider and implement these protections as a good business practice.
“Design professional” means a person, as defined in s. 1.01, who is licensed in this state as an architect, a landscape architect, an engineer, a surveyor, or a geologist or who is a registered interior designer, as defined in s. 481.203. Fla. Stat. § 558.002(7).