Florida Professionals May Face Personal Liability For Profession Negligence Even Greater Than Their Employers

A least since the Florida Supreme Court issued it's landmark opinion in Moransais v. Heathman1, "professionals" such as lawyers, engineers and doctors, have been subject to personal liability for professional negligence independent of any claims an aggrieved client may have against the professional's employer, and regardless of whether the individual professional is a party to a contract with the claimant. One way individual professionals have attempted to address this independent tort liability has been to insert limitations of liability into their service contracts. Often service contracts contain provisions limiting liability to the amount of the contract or some similar measure. While such limitations remain useful in terms of the liability of a contracting business entity, in the wake of the Third District Court of Appeals' decision in Witt v. La Gorce Country Club, Inc.2, they probably offer no protection to individual professionals.

In Witt, La Gorce Country Club entered into a contract with Gerhardt M. Witt & Associates, Inc. (GMWA) to perform hydro-geological consulting services in connection with the design and installation of an irrigation system. The agreement included a limitation of liability which purported to limit GMWA's liability such that "the total aggregate liability of GMWA and its subconsultants... shall not exceed the total dollar amount of the approved portions of the Scope or GMWA's total fee for services rendered on this project, whichever is greater." Mr. Witt, a licensed geologist, performed the services on behalf of GMWA.

When problems with the irrigation system arose, La Gorce sued not only GMWA, but also sued Mr. Witt personally. Witt argued alternatively that the tort action against him was barred by the Economic Loss Rule because it related directly to the performance of duties under the contract, and that at any rate, the limitation of liability in the contract protected him from liability beyond that allowed for in the contract. The trial court found both GMWA and Mr. Witt liable, but applied the limitation of liability in the contract only to GMWA. The court awarded over $4 million in damages against Mr. Witt personally, however, reasoning that the Economic Loss Rule did not bar a cause of action for professional negligence against a professional for his or her own negligence even though the damages are purely economic in nature and even though the aggrieved party has entered into a contract with the...