2022 Code of Alabama
Title 41 - State Government.
Chapter 9A - Miscellaneous Occupational Licensing Board Provisions.
Section 41-9A-3 - Contract Requirements for Professional Services of Design Professionals.

Section 41-9A-3

Contract requirements for professional services of design professionals.

(a) As used in this section, the term "design professional" means a person or entity who is licensed or authorized in this state to practice architecture, landscape architecture, surveying, engineering, interior design, or geology.

(b) A provision of a contract for the professional services of a design professional entered into after July 1, 2021, is void and unenforceable if it does any of the following:

(1) Requires the design professional to indemnify or hold harmless a contracting party, an indemnitee, or a third party against liability for damage other than liability for damage to the extent caused by, or in proportion to the extent the design professional participates in resolution of a claim based on, an act of negligence, recklessness, intentional tort, intellectual property infringement, or failure to pay a subconsultant or supplier that is committed by the design professional or the design professional's agent, consultant under contract, or other entity for which the design professional is legally liable.

(2) Requires the design professional to defend a contracting party, an indemnitee, or a third party against a claim arising out of the rendering of or failure to render professional services by the design professional or its agents that is not otherwise covered by the design professional's policy of professional liablity insurance.

(3) Requires the design professional to list a party or any other person or entity as an additional insured on the design professional's policy of professional liability insurance.

(4) Subjects the design professional to a standard of care different than that provided under subsection (d).

(c) Nothing in this section voids a provision of a contract for the professional services of a design professional to the extent that it includes any or all of the following:

(1) A requirement that the design professional list an additional insured on the design professional's general liability insurance policy, automobile liability insurance policy, or both, and provide coverage and any defense provided by those policies.

(2) A provision for the reimbursement of a contracting party's or an indemnitee's reasonable attorney fees, damages, losses, injuries, or other litigation costs in proportion to the design professional's liability, or in proportion to the extent the design professional participates in resolution of a claim also made against the contracting party or indemnitee.

(3) A provision or requirement not otherwise in conflict with subsection (b).

(d)(1) A contract for the professional services of a design professional shall require the design professional to perform the services with the professional skill and care ordinarily provided by a competent design professional practicing under the same or similar circumstances and professional licenses as expeditiously as is prudent considering the ordinary professional skill and care of a competent design professional.

(2) If a standard of care provision in a contract differs from the skill and care required under subdivision (1), the standard of care provided in subdivision (1) shall apply.

(e)(1) Nothing in this section prohibits parties to a contract for professional services of a design professional from including and enforcing conditions that relate to the scope, fees, and schedule of a project that is subject to the contract, so long as the conditions are subject to the requirements of subsection (d).

(2) To the extent not otherwise prohibited by law, nothing in this section shall be interpreted to make a public awarding authority responsible for, or to authorize a design professional to include in a contract, any provision making the public awarding authority responsible for the design professional's proportionate liability for negligence in rendering professional services or liability arising out of the design professional's non-professional actions in connection with its performance for or on behalf of the public awarding authority.

(f) This section does not affect the validity of any existing insurance contract, workers' compensation, or any agreement or coverage document issued by an insurer.

(g) Any provision of law to the contrary notwithstanding, this section may not be interpreted to alter or affect state joint and several liability law or workers' compensation law.

(Act 2021-318, §1.)