By Michael M. Edwards, Esq. – Byron & Edwards, APC

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This article outlines the effects on ADA litigation as the result of the Munson case in CA. Below is a quote from this article:



In light of the holding in Lonberg v. Sanborn Theaters, Inc. (9th Cir. 2001) 259 F.3d 1029, the class of ADA violators can be owners, lessors, lessees or operators of a public accommodation; however, design professionals cannot be sued in the Ninth Circuit (which

circuit includes the State of California) for an ADA violation. Lonberg determined that, while the ADA applies to owners and lessors (and certain others), its reach does not extend to design

professionals. Interestingly, some Federal appellate courts have come to a different conclusion on ADA suits; however, to date, design professionals are protected from Federal ADA lawsuits

filed in California. This fortunate result, though, does not prevent owners or lessors, who are sued under the ADA and/or the Unruh Act, from seeking implied (or possibly express) indemnity

from a design professional who allegedly committed professional malpractice, which resulted in the ADA violation, or a personal injury suit alleging a Munson cause of action.



After Munson, it is highly likely, as borne out by a recent trend that California state court actions founded upon the Unruh Act, and based upon ADA violations, will commonly be brought against owners or lessors for damages. It has and will continue to produce indemnity

cross-suits by such defendant owners or lessors against design professionals for alleged malpractice in connection with the ADA violation allegedly causing the loss.



Insurance coverage questions arise from these cross-suits; For example, questions arise from: (a) the nature of any “ADA violation” exclusions found in the Design Professional’s errors and omissions policy; (b) the ability of the indemnitee cross-complainant to recover from the design professional sums in excess of the actual damages suffered by the plaintiff (which the Unruh Act appears to allow); and (c) possible questions over an attorneys’ fees recovery by the cross-complainant against the design professional.