Duty to Defend
Understanding the “Duty to Defend” in Engineering Professional Services Contracts
Certain engineering and design professional contracts include a “duty to defend” clause, which may require the engineer or design professional to cover the client’s legal expenses—even in instances where the professional has not been found at fault.
This requirement is inherently inequitable. In cases where a client is sued by a third party, such a clause can obligate the engineer to pay the client’s legal fees, in addition to their own defense costs, regardless of any determination of negligence. For many firms, particularly smaller ones, these costs could be financially ruinous—even if the engineer ultimately bears no responsibility.
It is important to recognize that engineers and design professionals are not contractors, and their professional liability insurance differs significantly. Typically, such insurance only covers damages that arise from the insured’s own professional negligence. A “duty to defend” provision that is not explicitly linked to negligence is unlikely to be covered by insurance policies.
This creates a substantial uninsured risk that can be devastating, particularly on large-scale projects. Therefore, engineers should consistently and assertively seek to remove “duty to defend” clauses from their contracts. These provisions are generally both uninsurable and unreasonable. Ideally, they should be negotiated out during contract review.
More broadly, the most effective way to protect design professionals from this undue exposure is through legislative action. Several states have already taken steps to prohibit enforcement of such clauses, rendering them void and unenforceable. Similar legal reforms should be considered in all jurisdictions to ensure fair and sustainable contracting practices within the design industry.
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