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Americans with Disabilities Act-related lawsuits and claims against designers are on the rise, along with the associated costs.

“The possibility of an ADA claim should be on every design professional’s radar screen,” says David Sofaer, Esq., claims specialist for AXA XL’s Design Professional group. “These claims can be expensive to defend and can impose extraordinary remedial costs to fix the noncompliant components. Many are brought by individuals and law firms on the hunt for violations.”

Sofaer recently saw a claim that involved an ultra-luxury hotel. Developed by an international real estate corporation, the hotel was designed by an architect with an outstanding reputation and a near-flawless claims record.

Two years after the hotel opened, a guest, “Ms. Jones,” complained of various ADA violations in her room and other areas of the hotel. She claimed 17 violations in all.

“The alleged noncompliance was due, in part, to the design,” Sofaer says. Wanting to avoid a lawsuit or penalties, the hotel retained an accessibility consultant who determined that there were multiple and repeated ADA violations throughout the hotel. The hotel demanded that the architect correct all violations.

Eager to make things right, the architect hired a well-regarded accessibility expert, who concluded that damages would total $15-$20 million. “This far exceeded the architect’s professional liability policy limits,” Sofaer says. “Being forced out of business was a real possibility.”

Why so expensive? Even the most minor remediation required the removal and replacement of expensive coverings, finishes and fixtures, which increased costs significantly. “If a single fix has to be replicated dozens or even hundreds of times, we’re talking a lot of money,” Sofaer explains.

ADA lawsuits increasing

The number of lawsuits filed in federal courts related to the Americans with Disabilities Act Title III hit a record high in 2018 of 10,163 and is on track to increase in 2019. California, New York, and Florida led with the most lawsuits, with Texas, Georgia, Pennsylvania, Arizona, Massachusetts, New Jersey, and Alabama rounding out the top ten. (For more information about the ADA, see the sidebar, “The Americans with Disabilities Act.” For information about accessibility laws in Canada, see “Resources” below.)

The ADA continues to bring much-needed, sweeping change to the lives of those with disabilities. And while there are plenty of good-faith claims by those who have been denied access, many lawsuits also stem from so-called professional ADA plaintiffs who visit hotels, office buildings, restaurants and other places, hoping to find instances of ADA noncompliance. Some of these individuals are “testers” working for law firms that have carved out a market niche by filing hundreds of federal lawsuits under the ADA. These lawyers may use the ADA suits to force compliance with the law but also to earn thousands of dollars from business owners who quickly agree to settle the suits rather than fight them in court. One lawyer in California has filed more than 2,900 lawsuits. “Another reason these lawsuits are increasing is that the ADA, by statute, provides for lawyers’ fees,” Sofaer says.

While the hotel in our case was addressing its ADA issues, its management learned that “Ms. Jones” had extracted ADA settlements from two other nearby hotels. Although she didn’t file formal lawsuits, she did obtain about $10,000 worth of free hotel stays, spa treatments, and fine dining from each hotel. Two other individuals filed lawsuits against the hotel, probably based on “Ms. Jones’s” intel. “One claimant had brought 1,200 ADA lawsuits against various hotels over a three-year period,” Sofaer says.

Many lawsuits also stem from so-called professional ADA plaintiffs.

Accessibility laws not always clear

“What makes the issue challenging for design professionals and easier for these ADA plaintiffs is that ADA guidelines aren’t always straightforward,” Sofaer says. “City building codes and state and federal ADA laws are different and can conflict with each other. For example, they may have completely different clearance requirements with no clear indication of which law takes precedence. In addition, the codes and laws frequently change, making it difficult to stay current.”

A positive outcome

Although recent court rulings in the hotel’s jurisdiction have held that an owner cannot pass on ADA violations to its design professional and that it was the owner’s responsibility to make sure its property complied with the ADA, the architect could hardly imagine arguing to a prized client that it had to pay for everything when the design didn’t meet code. Indeed, the architect’s contract required the design to meet all applicable codes, laws, and regulations…which it did not.

The well-funded hotel developer eventually decided its best course was to pay to bring the hotel into ADA compliance as quickly as possible. The architect worked with the hotel to remedy the noncompliance, agreed to contribute slightly less than its policy limits, and received a release.

While this was great news for the architect, Sofaer thinks it was more than just good luck. “While the hotel had incentive to avoid future claims and bad press,” he says, “it also respected the architect as an outstanding designer, appreciated its owning up to its errors, and found its collaborative approach impressive. As a result, the hotel chose to work with the design firm rather than destroy it.”

What A/Es can do to prevent ADA-related claims

  • Familiarize yourself with the provisions of the ADA as well as state, local and other federal guidelines for accessibility. And stay current. As the body of published interpretations, regulations and case law evolves, your obligations and the extent of your liability may change. 
  • Discuss these issues with your client and make certain your client understands that while both of you are required to uphold the law, the owner has ultimate control over the design and use of the project.
  • Strongly recommend that the client retain an accessibility consultant who has a solid understanding of federal and state accessibility laws and ADA requirements. If the project is subject to heightened public exposure (such as a hotel, courthouse or entertainment venue) and if the client refuses to hire (or pay for) the services of an accessibility consultant, consider that a red flag. If you have to retain the consultant yourself, make sure it’s adequately insured and agrees by contract to fully indemnify you for its negligent acts, errors or omissions. In either case, make sure the consultant reviews the plans and visits the site. 
  • Address accessibility issues in your contract with language that sets forth the client’s responsibilities and the possibility for contradictory interpretations. Delete any clause that requires you to provide a certification, guarantee or warranty that a building is in full compliance with the ADA or similar statutes and regulations. Delete, too, any contract language that requires you to strictly comply with “all laws, codes, standards and regulations.” (See the sidebar, “Resources.”)


The Americans with Disabilities Act (ADA)

The ADA is monumental federal legislation aimed at providing those with disabilities full and equal access to employment and to goods and services in commercial and public facilities. Anyone who believes they’ve been discriminated against can submit a complaint with an appropriate federal agency or file a civil lawsuit against the party who owns, leases or operates a facility. The court can levy stiff penalties against a building owner or operator and can order the facilities be made accessible. Under most state laws, an aggrieved person with disabilities is also entitled to damages.

While the ADA language clearly applies to those who own and operate places of public accommodation and commercial facilities, it’s not yet evident that the ADA and its civil penalties can be directly enforced against the designers of such places. Indeed, the question of direct design professional liability under the ADA has not been fully settled, as courts in different jurisdictions have arrived at conflicting opinions. If an A/E can’t be directly named, the client will likely seek a defense and indemnity should a complaint be filed against the client. But the difference between direct and indirect actions against the A/E could be significant: a direct civil rights action seeking fines and penalties is not insurable under most professional liability policies written today.


Resources
“ADA Compliance and an Architect’s Responsibility,” Communiqué, January 2018 located on client-only Learning Management System
“Americans with Disabilities Act & Online Business: Be compliant or risk a lawsuit or fine,” AXA XL Fast Fast Forward
AXA XL’s Contract Guide, “Accessibility” chapter located on client-only Contract Guide site
“Disability, Accessibility & Liability: What an Architect Should Know,” AIA Trust
“Electronic accessibility laws in Canada,” Communiqué, November 2019 located on client-only Learning Management System
“Is your public client requiring accessible electronic documents?” Communiqué, November 2019 located on client-only Learning Management System
“Making an accessible Canada for persons with disabilities,” Government of Canada

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