Kentucky Court Rules No Contract Needed for Contractors to File Negligent Misrepresentation Suits Against Architects

Sep 29, 2017

This ruling expands the ability of contractors to obtain recourse against architects.

The Kentucky Court of Appeals recently ruled that contractors can file suit against architects even though there is no contractual relationship between the two. D.W. Wilburn, Inc. v. K.Norman Berry Assocs., Architects, PLLC, No. 2015-CA-001254-MR, 2016 WL 7405774 (Ky. Ct. App. Dec. 22, 2016).

Lori Wisniewski Azzara and James P. McGraw, writing in the Construction Law Now blog explain how the Appeals Court reached its decision.

General contractor D.L. Wilburn and K. Norman Berry Assoc. (KNBA) Architects were hired by the Oldham County Board of Education to participate in a school construction project.

Wilburn did not have a contract with KNBA but it did sign “21 change orders that contained waiver and release language.”

When the project was complete, the electrical subcontractor filed suit “against Wilburn for delay to the project. In turn, Wilburn sued KNBA under a negligent misrepresentation theory.”

KNBA’s defense asserted, among other things, that because their contract was with the owner, not Wilburn, the suit should be dismissed. The Circuit Court found in favor of KNBA. Wilburn appealed.

The Court of Appeal reversed, ruling that Wilburn did have a valid tort claim for negligent misrepresentation against the architect because “the waivers executed by Wilburn released only claims against the Board and not against KNBA. The Court found that KNBA was not a party to the general contract, that the change orders themselves did not create a contractual relationship between KNBA and Wilburn, and that nothing in the change orders or final application waived or released a negligent misrepresentation claim against KNBA.”

The case was remanded to the lower court.

Although it is difficult to understand why the signed waivers in the change orders did not create a contractual relationship between the contractor and the architect, this ruling is a victory for the construction industry. In Kentucky, at least, the court has taken a more expansive view toward the standard of duty architects owe contractors.


KY Contractors Can Now Assert Claims for Negligent Misrepresentation Against an Architect Despite Absence of a Contract, Lori Wisniewski Azzara and James P. McGraw, Construction Law Now, July 24, 2017.