This article will attempt to alert interior designers in Alabama to potential areas of liability arising from their furnishing professional services to their clients.  This article is not intended to be a comprehensive survey of potential claims that could be made against interior designers, but rather is a cautionary tale of some pitfalls to avoid.  The information furnished herein should not be considered legal advice and should not be relied upon without consulting one’s lawyer.  Please see the disclaimer at the end of this article.

In addition, this article concentrates on claims that might arise in a civil action for negligence or breach of contract against an interior designer, not necessarily complaints that may be made to the body that governs registered interior design practice in Alabama, the Alabama Board for Registered Interior Designers.  It is understood that all members of ASID are not registered interior designers, but a mention of the Act is warranted.

The Alabama Interior Design Registration Act of 2010

That Board was created by the Alabama Interior Design Registration Act of 2010, ALA. CODE, 34-15C-1, et seq. (1975).  Some of the pertinent provisions are as follows:

Prohibited activities.

(a) Any person who is not a registered interior designer who uses the title registered interior designer on any sign, card, listing, advertising, business name, stationery, or in any other manner knowingly implies or indicates that he or she is a registered interior designer shall be guilty of a Class A misdemeanor.

(b) Any person who is not a registered interior designer who stamps or seals any document with a stamp or seal containing the term registered interior designer shall be guilty of a Class A misdemeanor.

(c) Any registered interior designer who stamps or allows to be stamped any document that is not prepared under his or her supervision and control shall be guilty of a Class A misdemeanor.

(Act 2010-706, p. 1715, §2(b).)

Disciplinary action.

(a) Any time that the board has reason to believe that a registered interior designer is subject to discipline, notice of the charges placed against the registered interior designer and the time and place of the hearing of such charges by the board shall be served on the accused, pursuant to the Alabama Rules of Civil Procedure, not less than 45 days before the date fixed for the hearing. The notice shall inform the registered interior designer that he or she is entitled to respond to the charges within 30 days, be represented by counsel of his or her choosing at the hearing, have witnesses testify in his or her behalf at the hearing, confront and cross-examine witnesses at the hearing, and testify in his or her behalf at the hearing. The board may provide further for any procedure not herein enumerated that is consistent with the Alabama Administrative Procedure Act.

(b) In all cases of disciplinary action taken by the board, the accused may appeal the disciplinary action to the Circuit Court of Montgomery County, Alabama, or to the circuit court for the county of residence of the accused. Either party has the right to appeal from the final decree of the circuit court as provided by law.

(c) If the board determines that any person is violating the title restrictions contained in Section 34-15C-9, or that any registered interior designer is violating any other provision of this chapter, the board, in its own name, may seek an injunction in the circuit court for the county of residence of the accused, and the court may enjoin such person from violating this chapter, regardless of whether the proceedings have been or may be instituted before the board or whether criminal proceedings have been or may be instituted.

(Act 2010-706, p. 1715, §2(b).)

And from the Alabama Administrative Code, the following on the power of the Board:

The board may refuse to grant, deny, revoke, suspend, or reinstate a certificate of registration to a Registered Interior Designer; issue a private or public reprimand to an individual possessing a certificate of registration; and assess and collect administrative fines not to exceed $2000.00 for violations of Code of Ala. 1975, §34-15C. In addition to the foregoing, the board may institute any legal proceedings necessary to enforce this chapter, or any combination of the foregoing, for any of the following conduct: (a) Fraud, deceit, dishonesty, or misrepresentations, whether knowingly or unknowingly, in the pursuit of his or her practice or in obtaining any certificate of registration or other thing of value. (b) Gross negligence, misconduct, or incompetence in the pursuit of his or her practice. Chapter 485-X-7 Interior Design Supp. 3/31/19 7-2 (c) Conviction of a felony until civil rights are restored. (d) Incompetence, as adjudged by a court having jurisdiction. (e) Violating or directly or indirectly aiding or abetting in the misuse of titles and/or seals by a person without valid registration pursuant to this chapter in the State of Alabama. (f) Practicing in this state in violation of any standards of professional conduct as may be established by rule of the board. (g) Failure to pay any fee or administrative fine assessed by the board. (h) Failure to comply with any final order of the board.

It should be noted that an aggrieved person may make a complaint to the Board regarding a registered interior designer while also pursuing a civil case against him or her.  The Act governs only registered interior designers.

The Good News

A word search on the Alabama Bar Association Fastcase database, looking for “interior designer,” “negligence” and “breach of contract” found no reported cases in Alabama containing those terms, which involved a direct action against an interior designer, claiming negligence or breach of contract.  (There are several cases against architects, however.)  That does not eliminate the possibility that an interior designer has been sued for such in Alabama.  Only appealed cases are reported.  There could be lawsuits against an interior designer that were settled or that were tried to judgment and not appealed.

The Not-So-Good-News

Though the word search was not able to find any reported cases against an interior designer in Alabama, there is always a “first time.”  You do not want to be that “first time.”  There are many cases in Alabama involving general contractors and subcontractors sued in what are called “bad house cases” or “bad building cases.”  In other words, a homeowner (or the owner of a commercial building) has contracted with a general contractor to either build a new house or building or renovate an existing structure.  If the owner becomes dissatisfied with the work, he may file a lawsuit or an arbitration.  Often, he or she will file a lawsuit or an arbitration against the general contractor, and then the general contractor will bring into the lawsuit or arbitration its subcontractors, which could include an interior designer.

Essentially, the owner will claim that the contractor (or interior designer) was negligent in some respect or breached a written or oral contract or breached written or implied warranties.  The plaintiff must prove that the contractor, or interior designer, failed to meet the standards of his or her particular trade or profession.  He or she does so by hiring an expert witness in the particular trade or profession practiced by the defendant.  The expert will inspect the building and the plans and render a report, specifying various violations of industry standards, building codes or other regulations or standards.  The defendant must then hire his or her own expert to refute the claims of plaintiff’s expert.  It can be an expensive proposition.

Some of the claims made against contractors and tradesmen, and potentially interior designers, include the following:

1. Negligence/Wantonness. The plaintiff will claim that the defendant (interior designer) had a duty to design the building or space and specify materials that met all applicable building codes and industry standards.  Further, if the interior designer undertook to supervise the actual construction or renovation of the home or commercial building, a claim will be made that the interior designer negligently failed to properly supervise the work.  In addition, if the interior designer represented to the owner that he or she would provide the tradesmen to do the work, a claim will be made that the interior designer negligently hired, trained or retained the workmen.
2. Breach of Contract. The plaintiff will claim that the interior designer contracted to provide plans and materials that would meet all industry standards and building codes and failed to do so.  The plaintiff may also claim that the interior designer breached his or her agreement to hire competent tradesmen and properly supervise them.
3. Breach of Warranty. The plaintiff will claim that the interior designer expressly or impliedly warranted to the plaintiff that he or she would provide plans and materials that met all industry standards and building codes and that the construction and materials would result in a home or building that met those standards and codes.
4. The plaintiff will claim that the interior designer made intentional or innocent representations to the plaintiff that the plans and materials, and the subsequent construction, would meet all codes and standards.  Plaintiff relied on those statements to his or her detriment.
5. The plaintiff will claim that the interior designer suppressed material facts from him or her; for instance, that the plans and materials did not meet all codes and standards; that the designer did not have the legal right to stamp drawings (see the Act, quoted above); or that the residential or commercial building was not constructed in accordance with all codes and standards.

The above are typical causes of action claimed in “bad house” or “bad building” cases, but it is not an exhaustive list.  What can you do to avoid these kinds of claims or provide a reasonable defense against them?  Here are some suggestions, but they should not be taken as legal advice.  For that, consult your attorney.

Have a written contract with your client.  It should specify, at a minimum, the following:

1. You are being hired to provide interior design services only. Specify those services.
2. You are not hiring or providing tradesmen for the work, nor are you supervising that work. You may make recommendations, if requested by the owner, but they are only recommendations, not guarantees that the contractors or tradesmen will perform adequately.
3. It is the responsibility of the owner to hire competent tradesmen and contractors, and it is the responsibility of those tradesmen and contractors, not the interior designer, to ensure that the work meets all applicable building codes and industry standards and to obtain all relevant permits.
4. The contract should disclaim all warranties, express or implied.
5. It should also state that no representations made outside the confines of the written contract have been made and that the written contract itself contains all representations made to the owner. It should contain an acknowledgement by the owner that the interior designer has divulged all material facts concerning the project and has responded to all the owner’s questions regarding the project to the owner’s satisfaction.
6. If the project involves the removal of walls or an extension to the home or building, the contract should state that the interior designer is not responsible for any structural issues. All structural issues should be addressed by a competent engineer, architect or general contractor to be hired by the owner.  A registered interior designer who prepares stamped drawings should be mindful of the following provision in the Act, mentioned above:  “Unless the drawings utilize, reference, and incorporate documents prepared by architects, engineers, or other related professionals, the drawings may not include the design or modification of architectural and engineering interior construction relating to building systems, such as building structural support, fire rated assemblies, stairwells, means of egress components, elevators, elevator shafts, plumbing, heating, ventilation, air conditioning, fire protection, and mechanical and electrical systems, except for the scope of interior services as defined by the NCIDQ or for the coordination of the aesthetic requirements of fixtures”.  CODE §34-15C-15(a)(2) (1975).
7. If the interior designer is to receive a commission on the sale of product or materials in addition to a fee for performing interior design services, such should be disclosed in the contract.

Keep track of the progress of the work.  You are not supervising it, just monitoring its progress.  Communicate with the owner often.  Many lawsuits result from a lack of communication between the owner and the potential defendants.  Make it clear to the owner that you are available to address any issues he or she may have that are not being addressed by the contractors.  You are on his or her side.

Keep abreast of the building codes.  The code officials in your area probably have periodic meetings that will provide you with CEU’s and the latest in code issues.  Attending those meetings will also establish invaluable relationships with the folks who will be enforcing the codes. 

Obtain malpractice insurance, sometimes called “errors and omissions” insurance.  If you own or rent a space for your practice, obtain a “general liability” policy that would cover premises liability issues like slip and fall cases.  The two types of policies cover different risks.  For instance, a “general liability” policy might not cover your work as a professional interior designer.  For protection against an allegation of professional misconduct or malpractice, you need an “errors and omissions” policy.  Check with your insurance agent for the types of policies you need to defend and indemnify you for the possible claims identified in this article.

I hope these recommendations are helpful to you.  I must emphasize, however, that they are not substitutes for seeking legal counsel in drafting your contracts and addressing the issues in this article.  Your lawyer may or may not agree with the suggestions made above.  A little money spent upfront might save you many dollars later.  Please see the disclaimer below.

About the Author

Stephen V. Hammond is a graduate of the University of Alabama School of Law.  He was a Student Work editor on the Alabama Law Review.  After graduating from Alabama, he took a job in the law department of Exxon Company USA in New Orleans for five years, returning to his hometown of Decatur in 1979 to establish his own law practice.  He has been in the private practice of law in Decatur since that time.  He is an AV rated lawyer by Martindale Hubbell, the premier peer rating service for lawyers.  The bulk of his practice is in civil litigation defending clients sued for money damages.  He has represented many contractors, sub-contractors and tradesmen in such lawsuits.  No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers, and no representation is made that Mr. Hammond is a specialist in the matters discussed in this article.

Disclaimer

The information in this article is intended to furnish readers with general information on matters they may find of interest and does not constitute legal advice.  It is provided for general guidance and is not intended to replace the advice of one’s lawyer.  The reader is advised to consult his or her attorney before making any decisions with regard to the information given in this article.  The information provided may not constitute the most up-to-date legal or other information and is not guaranteed by the author to be accurate.  Use of the information in this article shall not establish an attorney-client relationship between the author and any reader of this article.