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.