Werner Sabo is a partner at the construction law firm of Sabo & Zahn in Chicago. He is also a licensed architect, having practiced architecture for a number of years prior to establishing his law practice in 1981. He is a member of the AIA and CSI, has been an officer and director of the Chicago Chapter AIA, President of the Chicago Chapter, Construction Specifications Institute, and writes a monthly construction law column for The Construction Specifier. He is also a founding member of the Society of Illinois Construction Attorneys. In 1997, the AIA elected him to the College of Fellows. His book, Legal Guide to AIA Documents, published by Aspen Publishing, is in its fourth edition. Mr. Sabo is also a construction arbitrator and mediator for the American Arbitration Association and is admitted to the federal trial bar.
James K. Zahn is a licensed architect and attorney in the State of Illinois. He is a partner in the law firm of Sabo & Zahn, concentrating in construction law and representing owners, contractors, architects, developers, engineers and other parties in the construction process. He received a Bachelor of Architecture from the University of Illinois and his JD from Chicago-Kent College of Law. Mr. Zahn is a member of the American, Illinois and Chicago bar associations, American Institute of Architects, Association of Licensed Architects, Construction Specifications Institute and has NCARB Certification. He was a past president of the Illinois Council of the American Institute of Architects and is a Fellow of both the American Institute of Architects and the Association of Licensed Architects. He is currently a resource member of the AIA National Documents Committee.
Shawn E. Goodman is a partner with Sabo & Zahn. He concentrates in litigation of all types. A graduate of the Northwestern University School of Law, he was admitted to the bar 1993. Since that time, he has practiced before local and outlying circuit courts, U.S. District Court, and various administrative tribunals. He has acted on behalf of a variety of clients including small to mid-sized businesses and individuals. He has handled all facets of litigation from pleading to motion practice to discovery to trial. The cases with which he has been involved are varied and wide-ranging and include personal injury, breach of contract, criminal defense, commercial disputes, and consumer fraud. He has represented both plaintiffs and defendants and has practiced before juries as well as judges. Mr. Goodman has also worked on appeals and has assisted in the drafting of appellate briefs.
The AIA is planning to release a revised version of the major AIA documents (General Conditions, Owner-Architect agreements, etc.) this fall. For a number of months, draft versions have been distributed to various groups for comment. It appears that the AIA, in an apparent effort to make the documents more owner-friendly, will be drastically revising the provisions relating to the state of limitations.
In the current version of A201 (Section 13.7), as well as B141 and B151, the documents set the accrual date of the applicable statute of limitations as the date of Substantial Completion. This means that, whether or not a problem has been discovered, the statute of limitations starts on that date and terminates on a date certain, depending on what that state's laws are. Without this provision, most states have a statute of repose and "discovery" rules that permit a party to "discover" a latent defect years after substantial completion and the statute of limitations doesn't even begin to run until this discovery. This means that the architect and contractor are open to a lawsuit by an owner many years after the project is completed.
With the latest draft of A201, this provision is completely removed, making this decidedly unfriendly for contractors. Likewise, the latest draft of one of the new owner-architect agreements substantially alters this provision, resulting in a substantial increase in the time that the architect is exposed to liability.
This is not some idle exercise. A number of lawsuits have been won at an early stage by architects and contractors based on this statute of limitations language in the AIA documents, even though the owner argued that there was a latent defect that was not discoverable until much later. The proposed changes will make dismissal of such lawsuits much more difficult.
It is, of course, possible that the AIA will change their position before the documents are formally published later in 2007. This is unlikely to occur unless architects and contractors make it known to the AIA that they are unhappy with this change.
