PBCBA BAR BULLETINS pbcba_bulletin_april 2018 - Page 9

APPELLATE C o r n e r LICENSURE IS A PREREQUISITE TO PURSUING CLAIMS FOR PROFESSIONAL NEGLIGENCE JON D. DERREVERE SHIRLEY JEAN McEACHERN In Sunset Beach Invs., LLC v. Kimley-Horn & Assocs., 207 So. 3d 1012 (Fla. 4th DCA 2017), the Court confirmed that “At a minimum, in a profession where a license exists, the ex- istence of a license is a valid barometer for determining whether a person is classified as a professional”. Id. at 1015. The Court cit- ed Garden v. Frier, 602 So. 2d 1273, 1276 (Fla. 1992) for the proposition that “[A] vocation is not a profession if a state license is not required at all” and Bixenmann v. Dickin- son Land Surveyors, Inc., 294 Neb. 407, 882 N.W 2d 910, 914 (Neb. 2016) to confirm that “[T]he requirement of a license to practice one’s occupation, although not dispositive, ‘strongly indicates that an occupation is a profession.’ However, the requirement of a license alone does not make an occupation a profession, as the preparation and train- ing required to procure that license are also important factors.” Section 471.005(5) Fla. Stat. (2013), defines “Engineer” to include the terms “profession- al engineer” and “licensed engineer” and means a person who is licensed to engage in the practice of engineering under Chap- ter 471, Fla. Stat. Section 558.002(6), Fla. Stat. (2013), defines “Design Professional” to mean “a person, as defined in s. 1.01, li- censed in this State as an architect, interior designer, landscape architect, engineer, sur- veyor or geologist”. Geologists were added to the list of “Design Professional” by virtue of a 2013 Amendment to §558.002(7), Fla. Stat.. Engineer interns are not included in the definition of “Engineer” or “Design Profes- sional”. Section 471.005(6) Fla. Stat. (2013) provides that an “Engineer Intern” is “a per- son who has graduated from an engineering curriculum approved by the board and has passed the fundamentals of engineering ex- amination as provided by rules adopted by the board.” In Sunset Beach, a development company hired Kimley-Horn “to provide professional design and permitting consulting services” in regard to the development of beachfront property on Hutchinson Island, Florida. Kimley-Horn’s Project Manager (Kiefer) was an environmental scientist who was not li- censed as a professional engineer. Sunset Beach sued Kimley-Horn and Kiefer seek- ing damages exceeding the Limitation of Liability (“LOL”) provision contained in the parties’ contract. Sunset Beach claimed that Kiefer was individually liable for pro- fessional negligence based upon his status as an “Engineer Intern”. The trial court entered a final summary judgment for Kiefer finding that he was not a licensed “Design Professional” and could not be sued as such. On appeal, Sunset Beach claimed that Kiefer could be held li- able in his individual capacity – indepen- dent of the LOL under Estate of Rocks v. McLaughlin Eng’g Co., 49 So. 3d 823 (Fla. 4th DCA 2010) because Kiefer’s service was “one requiring special education, training, expe- rience and skill.” In affirming the final summary judgment, the Court made clear that “we did not hold in Rocks that a license is unnecessary for a professional negligence claim to exist.” Id. at 1015. The court reasoned that the test proposed by Sunset Beach for identi- fying professions subject to personal lia- bility would require courts to decide what qualifies as “special education”, what qual- ifies as “training” and what is acceptable “experience”. The court continued by ob- serving that in Garden, “the Supreme Court explained that too much imprecision and variation is created by allowing courts to second-guess what does or does not consti- tute the equivalent of a college degree.” Id. at 1275. The Court in Sunset Beach, accord- ingly reasoned that “[i]f too much impreci- sion and variation resulted when the test hinged solely on education, it would surely exist if the test required a balancing of edu- cation, training, experience and skill.” Sun- set Beach at 1015. The undisputed record established that Kiefer was not a licensed engineer; his status as an engineer intern was not dispositive. “Unlike licensed sur- veyors and licensed engineers, the Legisla- ture does not classify an unlicensed intern as a professional. For that reason, unlike a licensed engineer who is required to renew the engineering license every two years, no requirements exist to maintain the engi- neer intern designation. §471.017, Fla. Stat. PBCBA BAR BULLETIN An engineer intern is neither licensed nor regulated.” Id at 1216. In Florida, licensing is the sine qua non for pursuing a claim for professional negligence. The trial court properly found that the un- disputed record evidence established that Kiefer was not a licensed engineer, was not a design professional, and could not be sued for professional negligence. CLE Seminars Save the dates Real Estate Practitioners Under the Umbrella of Real Estate will be presented on Friday, May, 18 from 9:00 a.m. – 6:00 p.m. at the Fourth DCA. Trial Lawyers An A to Z Trial lawyer’s Guide to Preserving and Surviving Appellate Scrutiny at Every Phase of Trial , will be presented on Wednesday, May 30 from 12:00 – 5:00 p.m. at Fourth DCA. Appellate Practitioners Making Extraordinary Writs more than Ordinary , will be presented on Friday, June 1 from 11:30 – 1:00 p.m. at the Fourth DCA. Community Law Practitioners The PBCBA’s Annual Community Association Law seminar will be presented on Friday, June 8 from 8:00 a.m. – 1:00 p.m. at the Fourth DCA. Attention Bankruptcy Trends Practitioners Bankruptcy Trends , along with a Judicial Reception will be held on Friday, June 22 from 1:30 – 5:30 at the Fourth DCA. For more information about this seminar, visit the Bar’s web-site or the events listings on our Facebook page.