Nevada Supreme Court Finds Breach Of Contract Against Architect Under State Law Is Not Preempted By The ADA

By Thomas D. Duquette

In December 2021, the Nevada Supreme Court held state law claims brought against an architect for failure to comply with ADA Guidelines were not preempted by the Americans with Disabilities in Board of Regents of Nevada System of Higher Education on Behalf of the University of Nevada, Reno v. Worth Group Architects, P.C., 499 P.3d 1177 (Nev. 2021). Worth Group Architects, P.C. (“WG”) was contracted to design renovations to Mackay Stadium, a 7,500-seat sports complex originally built in 1966 at the University of Nevada, Reno (“UNR”). After construction was completed, UNR found that the redesign did not comply with Americans with Disabilities Act Accessibility Guidelines (“ADA Guidelines”). Compliance with the ADA Guidelines had been specifically required by the contract, and UNR initiated both a
redesign of the stadium and a lawsuit against WG for breach of contract.

The Nevada District Court granted summary judgment for WG and concluded UNR’s claims were preempted by the ADA, and UNR was improperly attempting to delegate ADA compliance to WG contractually. The holding was in part based a prior Nevada District Court case titled Rolf Jensen
& Associates, Inc. v. Eighth Judicial District Court, 128 Nev. 441 P. 3d 734 (2012). In Rolf Jensen the Nevada court had held a resort could not seek indemnity for the cost of retrofitting needed to comply with the ADA from a consultant, because allowing the indemnity claim would permit owners to contract out of their nondelegable ADA responsibility. That, the Court held, would frustrate the ADA’s purpose
to prevent and remedy discrimination against people with disabilities.

On appeal in Board of Regents, UNR argued Rolf Jensen was misapplied, and the Nevada Supreme Court agreed. The Court noted that WG had “allegedly failed to carry out its contractual duties and UNR is simply asking WG to pay for those shortcomings in its contractual performance.” The Court distinguished the case from Rolf Jensen, where the plaintiff was seeking indemnification from its consultant to recuperate the costs associated with a retrofitting required to comply with a previous Department of Justice settlement. Here, there was no indemnification claim being pursued and indeed there was no prior judgment or settlement, a prerequisite for bringing a claim for indemnification or contribution.

Moreover, the Court found allowing “UNR to collect damages on the basis that WG signed a contract to perform certain services that happened to involve ADA-compliance, then allegedly failed to do so, does nothing to undermine those Congressional objectives” of the ADA. It found UNR was “not trying to abdicate its responsibility for ADA compliance” but rather “trying to hold WG accountable” for breaching
contractual provisions calling specifically for the redesign to comply with the ADA Guidelines. Since UNR’s claims would further, not frustrate the purposes of the ADA, the Court concluded that the claims were not preempted by the ADA. Therefore, they reversed the summary judgment and the claims against WG were sent back to the District Court for further proceedings.

The ruling may signify a trend of courts allowing state law claims to proceed against architects and other design and building professionals for breach of contract and other state law claims arising out of alleged non-compliance with ADA Guidelines. Most owners often have no choice but to contract out the design and construction of their facilities. Allowing state law remedies when compliance with ADA Guidelines is contracted for and not delivered may not be seen as an impediment to the ADA’s purposes.

However, it is important to note that the Board of Regents Court distinguished but did not overturn Rolf
Jensen. Therefore preemption, especially in the context of indemnification, may still provide a viable defense both in Nevada and other jurisdictions. The touchstone of preemption is whether allowing the claim to proceed would further or frustrate the purposes of the ADA. That determination will depend on the facts of the case and the nature of the claim being made. See, Rolf Jensen, 128 Nev. at 448–49, 282 P.3d at 748 (and cases cited therein); City of Los Angeles v. AECOM Services, Inc., 854 F.3d 1149
(9th Cir. 2017), opinion amended on other grounds, 864 F.3d 1010 (9th Cir. 2017) and cert. denied, 138 S. Ct. 381, 199 L. Ed. 2d 279 (2017) (holding neither the ADA nor Rehabilitation Act preempted claims against the contractor); but see, Access 4 All Inc. v. Trump Intern. Hotel and Tower Condominium, 2007 WL 633951 (S.D. N.Y. 2007) (holding common law indemnity claim against the architect, if they exist, to be preempted by the ADA).