In Novum Structures, LLC v. Larson Engineering, Inc.,
2019 WL 1924878 (E.D. Wis. April 30, 2019), a Wisconsin District Court addressed
whether an engineer’s sealing of design drawings makes the engineer the “Engineer
of Record” and establishes a duty to verify the accuracy of the entire design. In
2014, Novum Structures, LLC (“Novum”) was hired to build a glass enclosed atrium.
Novum prepared design drawings and supporting calculations for the atrium’s
steel structure, but the drawings did not specify the type of welds that would
be used to connect trusses to beams.
Novum sent the drawings to Larson Engineering, Inc. (“Larson”)
to review and seal. The contract between Novum and Larson was oral and largely based
on review services Larson had provided on other projects in the past. As you
can guess, the parties disputed the nature of the work to be provided by Larson.
Novum argued Larson was the “Engineer of Record,” and thus incurred any
resulting liability for a defective design. Larson argued it was hired merely
to conduct a peer review of drawings to ensure they conformed to the local
building code.
In 2016, ice on the structure led to cracks in the welds at
the connection of the truss to the beam. The subsequent investigation of the
cracks revealed the welds were insufficient and the structure was unstable as a
result. Novum sued Larson alleging negligence and breach of contract as a
result of approving and sealing the design, despite not certifying the welds
were sufficient.
The Court denied Novum’s motion for summary judgment,
holding there was a genuine dispute as to whether Larson was simply “peer
reviewing” the documents or served as the “Engineer of Record” with a duty to
verify the structural stability of the atrium as a whole, including the weld connectors.
The Court stated, “what matters is the understanding between and the reasonable
expectations of the parties.” The Court found that Novum’s expectations as to
Larson’s work did not include reviewing the welds, as that information was not
even provided to Larson. The Court also rejected Novum’s assertion that Larson
had a non-delegable duty to ensure the welds were sufficient, noting that public
policy cannot support the application of the non-delegable duty as between two
sophisticated peers.
This case should remind engineers and owners to clarify their relationships and obligations in writing, as verbal agreements will undoubtedly devolve into arguments about the scope of services being provided. It is common for an owner to argue an engineer that seals drawings becomes the “Engineer of Record” and has responsibility for the structure as a whole. This Novum decision, however, indicates this may not be the case and the duties owed are still only those the engineer agreed to provide.
