Structural Engineer’s Design Contract Includes Implied Obligation to Provide Adequate Design

kaibab llc, roger owersStructural Engineer’s Design Contract Includes Implied Obligation to Provide Adequate Design

Arizona Society of Civil Engineers Newsletter, February 2015

By Roger Owers, Ph.D., P.E., J.D.

In the mid-1990’s, Bingham Engineering Consultants LLC began providing residential structural engineering services to Meritage Homes of Arizona, Inc.  In October 2003, Bingham provided a written proposal to Meritage agreeing to provide structural engineering services to convert a design for a Meritage one-story home design without a basement into a design for a home with a basement.

Bingham’s design included the use of floor trusses to support the kitchen floor over the basement area.  Though the design of the trusses included adequate dead load criteria for some of the surface materials, the design was inadequate for a dead load that included tile flooring and granite countertop surface materials.

Meritage used Bingham’s design to build three such homes with basements, each of which had tile flooring and granite countertops in the kitchen.  Eventually, Meritage received complaints from the homeowners in these three homes about a bounce in the floors.  Meritage soon discovered that Bingham’s design was insufficient for these homes and then sued Bingham for breach of contract, negligence, negligent misrepresentation, and indemnity.

Bingham admitted that the design should have included consideration of the dead load from the tile flooring and granite countertops.  The trial court found in favor of Meritage and awarded Meritage approximately $350,000.  The superior court concluded that the contract between Bingham and Meritage not only required Bingham to provide the design, but also included an implied obligation to provide an adequate design.  Bingham appealed the decision, arguing among other things, that Bingham’s contract had no such implied obligation.

The appellate court upheld the superior court’s decision.  The appellate court held that Bingham’s contract included an implied obligation to provide an adequate design and that Meritage was damaged by Bingham’s failure to do so.  This holding is consistent with existing law that an architect has to provide a usable and constructible design.  For example, see Flagstaff Affordable Hous. Ltd. v. Design Alliance, Inc., 223 Ariz. 320, 328 ¶ 40, 223 P.3d 664, 672 (2010) (“Architectural contracts generally include compliance with applicable building codes and other legal design requirements as an implied term.”)  Finally, the appellate court also upheld the award against Bingham, which included damages, attorney’s fees, and sanctions.

The case is Meritage Homes of Arizona, Inc. v. Bingham Engineering Consultants, LLC.  It is a Memorandum Decision.  Therefore, under Arizona Rule of the Supreme Court 111(c), it does not create legal precedent and may not be cited except as authorized.  It can be found at

This article is intended for general information only.  It should not be construed as legal advice with respect to any particular situation.  Readers should not act upon information contained in this article without first consulting their lawyer.

Roger S. Owers is a commercial real estate professional with Keyser LLC and is a lawyer with the Kaibab Law Offices of Roger S. Owers LLC.  Roger holds a Ph.D. in civil engineering, is a registered professional civil engineer, holds a real estate license, and is a licensed attorney.  He can be reached via e-mail at or  He can also be found on LinkedIn at


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