The Architect and Contractor as Joint Tortfeasors: Kent Holland Tells a Tale of Georgia.

Kent Holland goes high tech.   I'm not sure how long he's been doing the video version of his newsletter, but it (and he) look great.   Check it out.

In his August newsletter Kent reports on Zurich American Insurance v. Heard, 740 S.E.2d 429 (Georgia, 2013).  There an owner sued his contractor and architect for construction defects in two separate proceedings, after the architect objected to a joint arbitration,  and settled with each of them.  The architect got off cheaply, settling for $100,000;  the general contractor's liability carrier paid several million dollars.  Subsequent to these settlements, the general contractor's liability carrier sued the architect for contribution under the theory that the architect and contractor were joint tortfeasors.  

Here's Kent: 

Under the law of the state of Georgia, joint liability and the right of contribution do not exist between settling joint tortfeasors when damages have been apportioned between the parties by a trier of fact such as a jury.  But where, as in this case, there has been no apportionment of damages by a trier of fact, there can be a contribution action such as the one filed by the insurance carrier herein. 

Comment:  This case is interesting in that it touches on several issues that parties should consider when executing their contracts and when later settling claims.  The contract here did not allow joinder and consolidation of claims against different parties in the same arbitration by the Owner unless everyone agreed.  That is consistent with current provisions of the AIA form contract documents.  There are certainly advantages and disadvantages to having the claims joined into a single proceeding.  It is something to think about when negotiating the contract.  With regard to the causes of action in the contribution action against the architect, the summary judgment was reversed and the matter now must go back to trial on the merits. 

If the contractor had attempted to make a claim directly against the Architect for breach of a contractual duty (with third party beneficiary rights) or breach of an independent duty of care, those claims may have been dismissed due to lack of privity of contract and possible application of the economic loss doctrine.  But if the Owner recovers damages against the contractor, that are also attributably to a joint tortfeasor (Architect), the contractor’s insurance carrier could prevail in recovering contribution against the Architect for the joint tortfeasors share of the damages.