Negligent Misrepresentation Standard Shifts in Contractor’s Favor with Pennsylvania Appellate Ruling

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Contractors and subcontractors who are aggrieved by erroneous information on construction documents may have an easier time proving an architect or other design professional made a negligent misrepresentation that harmed them financially under a recent decision from the Pennsylvania Superior Court.

In Gongloff Contracting, LLC v. L. Robert Kimball & Associates, the appellate court ruled that plaintiffs no longer need to expressly identify in their pleadings the design professional’s specific representations they allege to be erroneous.

Gongloff involved a construction project at a public university.  Because of concerns over the design of the roof structure, a subcontractor engaged an independent structural engineer who concluded that the roof design was “grossly inadequate.”  Although the architect, Kimball, then modified the roof design, the structural steel subcontractor, Gongloff, sued the architect to recoup costs it allegedly incurred installing the roof structure pursuant to the architect’s modified design – which did not facilitate the use of standard construction means and methods.

The architect argued that under Bilt-Rite Contractors, Inc. v. The Architectural Studio – a Pennsylvania Supreme Court case recognizing negligent misrepresentation claims against designers – Gongloff was required to identify some particular communication or document provided by the architect that was false.  The Superior Court,  however, rejected this conclusion, stating that pleading an “express representation” is not an element of a negligent misrepresentation claim under Bilt-Rite or its progeny. 

Under Gongloff, a plaintiff need not isolate a specific document or other source of information related to the project design that contained erroneous evidence.  While this likely lessens the pleading burden on  plaintiffs, the Gongloff court noted that plaintiffs still need to plead with specificity sufficient facts surrounding the alleged erroneously supplied information.

The long-term effects of Gongloff are yet to be seen.  At a minimum, however, claims litigated under Pennsylvania law against architects and other construction industry design professionals are now more likely to survive past the pleadings stage, and designers must be aware of their heightened risk of liability.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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