BY RICHARD SCIARONI, WATKIN WEISBACH HIGGINBOTHAM, ATTORNEYS AT LAW, IBD PERSPECTIVE, SPRING 1994
Over the last dozen years, some 16 states and the District of Columbia have enacted registration/certification laws affecting interior designers. The legislation varies widely. Some jurisdictions have no educational requirement; other require up to four years of post-secondary schooling; still other require a professional degree. Requirement likewise vary widely; all states require a minimum of the NCIDQ exam, but some states may require, additionally, a combination of additional education and work experience. In addition, some states have "grandparenting" clauses, although with the passage of time they will be phased-out. And finally, some interior designers will have to take up to 20 hours of biennial continuing education for renewal of their licenses.
The first legislation was passed by Alabama in 1982. By the close of the 80s, five other jurisdictions had followed suit. Since 1990, another 10 states have enacted interior design registration laws. And the trend toward registration continues.
One of the results of the registration/certification (licensing) laws is to increase the participation of interior designers in code and health, safety, and welfare planning issues (life safety). Some jurisdictions continue to require an architects participation in projects that fall under the Uniform Building Code or life safety codes, thus necessarily restricting an interior designers role in such projects. In such jurisdictions an interior designers clientele continues to include architects as well as the public.
Nevertheless, the increasing trend toward registration/certification has become a crucial aspect of the evolution of interior design, particularly in states that allow interior designers to sign or seal interior design documents that touch on code and life safety issues. But as registration enhances a designers professionalism, it becomes a double-edged sword: while registration will perhaps allow an interior designer to assume a more active role in the design of interior projects, and as those projects increasingly involve code and life safety issues, the interior designers role can mean increased liability exposure beyond more traditional concerns (i.e., aesthetics, finishes, furnishings, etc.). In short, as registration expands an interior designers participation in code and life safety decisions, the nature and scope of that designers liability deriving from those decisions will correspondingly expand. Consequently, an interior designer must recognize both the upside and the downside of the trend toward registration. No professional business program can either guarantee professional success or eliminate design liability. But a sound business plan, coupled with careful professional practices, grounded in an appreciation of professional liability will certainly lessen the increased liability that registration imposes.
Registration does not impose an entirely new liability regime on the interior designer. The nature of that liability continues to derive from a "standard of care" analysis. Simply put, if a designer is negligent, than liability for that negligence follows. So long as the designer meets the applicable "standard of care," there is no negligence and no liability would attach. Conversely, failure to meet the applicable "standard of care" is negligence and imposes liability for damages arising from that negligence.
In the interior design services context, the definition of "standard of care" does not vary. Essentially, an interior designer must (1) have the training and skill of those interior designers practicing in the same locale and under the same or similar circumstances, and (2) exercise that training and skill as would other interior designers. An interior designers registration, or lack of registration, plays no role in the definition (i.e., the "nature") of the standard of care. However, registration can and often does play a significant, if not determinative, role in deciding whether, in a particular case, an interior designer met the applicable "standard of care." That process is essentially "fact driven" it necessarily depends on the discrete facts of each case.
When the scope of interior design services for a project would require registration/certification (e.g., signing or sealing of interior design documents), lack of registration may impose liability akin to "practicing without a license." Thus, no matter the skill of the designer or the brilliance of the design, if registration is required but is not met, liability may nevertheless attach. Determining whether registration requirements were met is but a threshold step, and one that requires little effort to prove: either requirements have or have not been met.
The next step in deciding compliance with the standard of care is determining what is the standard of care and whether it was met. This is most often accomplished through "expert" witnesses who are, through their training and experience, able to articulate the standard of care and whether a designer met it. When the scope of a project requires registration, an expert would necessarily have to be a registered designer.
But even when the scope of a project does not require registration, registration can play an important role. Simply obtaining registered status and using it will require that an interior designer meet the standard of care of registered interior designers. No matter whether the scope of a particular future project could be at a heightened level because the designer was registered. And this would be true no matter what the expectations of the participants may be, the fee structure and budget, or other consideration that might, without hindsight, lead a designer to takes perhaps a "causal" approach to the project. This is particularly so for the scrutiny that can follow from a failed or flawed project. In such a case, scrutiny that can follow from a failed or flawed project. In such a case, scrutiny is always going to be made with hindsight, and hindsight is always "20/20." Few projects can stand up to such scrutiny.
Thus, assessing whether registration/certification is desirous requires a two-fold recognition: registration can mean enhanced professionalism within the interior design industry, but with correspondingly enhanced liability exposure. Careful business planning and an emphasis on continuing education can minimize the impact of that exposure. For example, an interior designer may be able to obtain insurance that would cover the increased liability arising from registration. However, reliance on a general or comprehensive liability policy to cover design liability could be dangerous because many insurers specifically exclude professional errors and omissions from coverage. Still other insurers will only insure against interior designer errors or omissions as part of a policy covering architects or engineers. Before relying on any insurance policy to cover design liability and interior designer should obtain written confirmation of coverage for design liability.
Registration is not for the faint of heart or the dilettante. It means enhanced liability exposure. But that liability should not be daunting. When coupled with a program of careful business planning and sound professional practices, including continuing education, registration can mean greatly enhanced professional success.