By Mike Koger, AIA, Esq., Senior Director and Counsel, AIA Contract Documents
January 24, 2024
If you’re an architect, how worried should you be that you will be sued for your architectural work after you retire? Should you also be concerned that your estate will be sued even after you die? Answers to these questions can be complicated as evidenced by a recent case out of Connecticut, Hockenberry v. Wapping Cemetery Association, Inc., that tested the limits of exposure an architect can face when looking to wind down its architectural practice. In this case, an architect was sued 16-years after he had last performed services on a project and several years after he died. The Hockenberry case is illustrative of the complex liability issues architects face when they do their retirement and estate planning.
In 2003, an architect named David Ward prepared preliminary plans for a cemetery expansion project for Wapping Cemetery Association, Inc. Although Ward provided these plans in 2003, Wapping did not proceed with the expansion project at that time. Fourteen years later, Wapping revisited the idea of the expansion plan and asked Ward to provide a proposal to reengage with the project. Ward provided Wapping with a proposal, but Wapping rejected it and instead decided to move forward with a scaled-down version of the project without Ward’s involvement. Two years later, Wapping finished work on the scaled-down expansion project using Ward’s original 2003 plans for some of the work.
After the project was completed, owners of an adjacent property brought a lawsuit against Wapping alleging that the expansion project caused flooding and other damage to their property. In turn, Wapping brought a claim against Greyer and Ward, Inc., Ward’s former firm, for indemnification of the damages sought by the neighbors arguing that Ward was negligent in the preparation of the original 2003 plans. This resulted in a Colorado Superior Court examining the question of whether Wapping could maintain its claim against Greyer and Ward, Inc. 16-years after Ward had performed services on the project.
In evaluating this case, the court noted that Connecticut has a statute of limitations that bars claims for design-related errors and omissions to seven years after substantial completion of a project. The unique element of this case, of course, was that the lag in time occurred between completion of Ward’s plans in 2003 and substantial completion of the project in 2019, not in the time between substantial completion and the start of litigation against Greyer and Ward, Inc.
Greyer and Ward, Inc. argued that where a property owner chooses to delay the construction of a project after an architect provides it with plans and specifications, the seven-year statute of limitations should begin to run when the plans and specifications were provided to the owner. Wapping argued that its claims against Greyer and Ward, Inc. fell within the seven-year limitations period because the claims were filed within seven years of substantial completion of the 2019 improvement. The court noted that the necessary implication of Wapping’s argument was that once an architect provides plans for a project, the statute of limitations would never begin to run so long as the improvement might be made at some indefinite time in the future. The court stated, “Reading [the statute] as Wapping urges would lead to absurd or unworkable results in that it would render the statute entirely inapplicable in any situation in which a project is planned but not completed. The statute of limitations would never begin to run.”
The court also looked at several other cases that touched on similar issues, although it ultimately concluded that these cases did not squarely address the circumstances presented in this case. These other cases had one thing in common – substantial completion of the delayed project was never achieved, and thus the seven-year statute of limitations rule could never be applied. In this case, however, substantial completion was possible and was achieved, albeit 16 years after Ward had provided its plans to Wapping.
Finding the statute and caselaw history insufficient to rule on the case, the court looked to the legislative history of § 52-584a for guidance. Specifically, the court quoted two state representatives who summarized the unique situation that an architect faces when it comes to retirement:
“I think that architects and engineers are in a little bit of a peculiar situation, different than what most professions are in, in that as it now stands as the law now stands, not only are we responsible for a building for our lifetime but our estates are responsible for that building as well. To put it in very simple terms, if a person 60 years from now is going down a [flight of] stairs holding on to a handrail and the handrail fails, even if I’m long gone from this earth, that person would have recourse to sue my wife if she is still alive or my estate for the action I took perhaps 10 years ago”.
“The big problem that I think we have here with architects is, more than any other area, what happens to them upon retirement when they get out of the business of being an architect and they are no longer busy at their work. Under the present situation, they still must maintain insurance, liability insurance, for the rest of their lives, even though they are no longer practicing. They no longer have architectural income but they still must maintain a liability policy. This bill would allow them after the 7–year period to finally get out from under the burden and drop that policy.”
After reviewing the statutory text, relevant caselaw history, and the legislative history, the court held that “where a property owner waits more than seven years to make improvements in accordance with plans provided by an architect or engineer, the statute of limitations in § 52-584a should run from the completion of the plans.” The court explained that a contrary interpretation would leave architects at the whim of property owners, who could choose to delay completion of projects and the running of the statute of limitations indefinitely. The court noted that such a result would undermine the expressed legislative intent of § 52-584a to provide a temporal limitation on the exposure of architects to claims. The court granted Ward’s motion for summary judgement, concluding that the seven-year limitations period began to run in 2003, when Ward provided its plan and Wapping decided not to improve its property.
While the Hockenberry Court reached a fair conclusion, it exposed a loophole in the Connecticut statute of limitations that applies to design professionals. A more proactive approach for an architect would be to solve this issue through its contracts. Most AIA Contract Documents include a contractual claims limitations provision similar to the one found in B101-2017, Standard Form of Agreement Between Owner and Architect:
An architect who is looking to close the liability gap exposed by the Hockenberry case should consider a shorter period for potential claims or establish the start of the time limit for claims at the moment when the architect provides its client with its construction documents. The B101-2017 also provides important protection for an architect when a client uses its instruments of service without retaining that architect for the project. The following section of B101 would likely have been triggered in the Hockenberry case as Wapping did not accept Ward’s proposal to reengage with the project in 2017.
An architect who is planning to retire should become familiar with the applicable statute of limitations and statute of repose laws in jurisdictions where they have practiced. They should also use contracts to help alleviate any uncertainty that might be present in these statutory schemes.
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AIA Contract Documents has provided this article for general informational purposes only. The information provided is not legal opinion or legal advice and does not create an attorney-client relationship of any kind. This article is also not intended to provide guidance as to how project parties should interpret their specific contracts or resolve contract disputes, as those decisions will need to be made in consultation with legal counsel, insurance counsel, and other professionals, and based upon a multitude of factors.
 Hockenberry v. Wapping Cemetery Ass’n, Inc., No. HHD-CV-20-6127670-S, 2023 WL 8432034, at *1 (Conn. Super. Ct. Nov. 30, 2023.)
 David Ward was providing architectural services on behalf of the firm Grever & Ward, Inc., which was the named third-party defendant in the case.
 Conn. General Statutes § 52-584a.
 13 H.R. Proc., Pt. 8, 1969 Sess., p. 3919. (Representative Steckler quoted)
 13 H.R. Proc., Pt. 8, 1969 Sess., p. 3920. (Representative O’Neil quoted)