Search Results for: standard of care

Is your design professional construction contract too friendly? (law note)

not friendlyMy husband often travels the back roads between Chapel Hill and Fuquay Varina to visit friends.  En route (a circuitous route that goes past Sharon Harris Nuclear Power Plant, among other places), he passes by the “Friendly Grocery”.  For those who haven’t had the pleasure, here is a photo of the side of the building in all its glory.

In case you cannot read the list of forbidden activities, I’m re-printed them here (complete with spelling error):

not friendly sign

I’m not sure which is the “friendly” part of that sign.  In fact, the sign seems to be the antithesis of friendly.

What does this have to do with your construction contracts?  Sometimes, in an effort to please the client and/or secure the project, architects and engineers have the habit of being too friendly in their contract language.  That is, you make promises or proposals that may promise too much of a good thing for the client.  This can cause big problems.  Bigger than being towed away from a rural grocery store in the middle of nowhere.  You could be putting your insurance coverage at risk.

Have you ever promised to use “best efforts” in your design or plans?  Promised to design to a specific LEED standard?  Guaranteed 100% satisfaction?  You might be putting your errors & omission coverage at issue.  By warrantying or guaranteeing something, you are assuming a level of liability well beyond the standard of care required by law.  By law, you only need to conform to the standard of care, and your insurance will only provide coverage up to that standard of care.  In other words, if you make guarantees or promise “best efforts,” you are contracting to something that will *not* be insured.  If something goes wrong, you will be without the benefit of your professional liability coverage.

Instead, make sure that your contracts, and proposals, are not too friendly to the client.  Sure, agree to work in accordance with the standard of care of professional architects/engineers.   But don’t make guarantees, or promise “best” efforts.  In fact, you might want to educate your client on why you cannot make such guarantees, and why anyone who does (i.e., your competition) is putting their insurance coverage at risk.  Owners want and need you to stay within the bounds of your coverage.  You need to, also.  Maybe the owner of the Friendly Grocery was on to something there.

Your turn.  Have you ever used language that jeopardized your insurance protection?  Uncertain if you have?  Drop me a line and we can talk.

Photo (c) Melissa Brumback  Creative Commons License

Mine is better than yours! Battle of the experts in the construction lawsuit (Law & Order: Hard Hat files Part 6)

battling deerEventually, most construction lawsuits of any size involve hiring experts to review the project.  These experts then usually issue an opinion as to whether or not you, as the design professional, violated the professional standard of care for architects or engineers working on a similar project in a similar community.

If the case proceeds to trial, all sides will have their own expert(s), with rare exceptions.  Thus, the “battle of the experts” begins.  That is, a jury will have to listen to your expert, their expert, and the juror’s own common sense, and try to make out who is correct.  As with most things, there are probably valid points made by all of the hired experts (that is, of all the reputable ones, at any rate).  If a case gets to trial, you can be sure of it.

Hiring an expert to support your position can be a scary prospect.  You will essentially be paying (or having your insurance carrier pay) to have a competitor look over all of your work with a fine-tooth comb and 20/20 hindsight, to see if he can concur that your design met the standard of care.  Your attorney should work with you to get a good, solid professional peer retained as your expert; however, if you have any suggestions of who to use (or, who you do *not* wish to use), make those opinions known.  It is important to hire someone who is impartial about the outcome of the case, but you will not be required to hire your worst enemy/competitor.

Another protection that is built into litigation, is whether or not the expert’s opinion will ever see the light of day.  If the expert cannot support your position, he will be designated a “consulting expert” and his opinions will remain only between you, your lawyer, and the expert.  Assuming the expert does support your position, he will be designated as a “testifying expert,” at which point the other side can look at his records and notes, read any written reports he generates, and take his deposition.

Hiring an expert doesn’t have to be an arduous process, but work with your lawyer to get someone you respect on your side of courtroom.

Questions? Comments?  Share your experience with experts, or being an expert, in the comments section below.  And don’t forget to sign up for the Construction Professional newsletter and my free white paper on 7 Critical Mistakes, on the right hand side of the homepage.

Photo (c) Sias van Schalkwyk

 

 

 

Engineering for the Earthquake- Dumbarton Bridge (News Note)

Engineers who design in earthquake-prone areas know that they need to design the seismic loads of their bridges to account for potential massive shifts during a quake.  (This is what is legally known as the professional standard of care, which takes into account what similar engineers, in the same conditions and community, would consider acceptable design)**.  The Dumbarton Bridge, the farthest south bridge across the San Francisco Bay, is no exception to this rule.

Currently, the Dumbarton Bridge is being renovated as part of the San Francisco Bay Area Toll Bridge Seismic Retrofit Program.  When the bridge is finished (expected in early 2013), the bridge will increase its ability to move from 20 inches of lateral movement to as much as 42 inches of lateral movement.

Dumbarton BridgeThe retrofit includes friction pendulum bearings designed by Earthquake Protection  Systems, Inc., which will isolate the superstructure from two pier structures where the main span of the bridge meets the approach structures.  A concrete taper will be used from the joints to the main span to ease the transition, as the approach span is 5 inches lower than the main span.

According to Earthquake Protection Systems president Victor Zayas, in a statement to Roads & Bridges magazine, the most critical part of the bearing is the bottom lining, which is a self-sacrificing, solid-lubricant polymer composite that was developed based on earlier research done by NASA in the 1960s.

Click here to read more on the Dumbarton Bridge retrofit.

**  If you missed my post on the jury instruction on standard of care, be sure to check it out here.

 

Photo (c) Jill Clardy via CC.

 

Specialized Certification for Structural Engineers: a necessity?

States with Certification RequirementsIn North Carolina, as in 39 other states, there is no special certification for structural engineers.  As structural engineering becomes more complex, is specialized certification an idea whose time has come?

“Increasingly, structural engineers, architects and construction firms work together at the earliest stages of a project,” says Jon Schmidt, Associate Structural Engineer and Director of Antiterrorism Services at Burns & McDonnell and Chair of the Editorial Board of STRUCTURE Magazine. “In today’s world of complex structures and 3D modeling, structural engineering is a partnership among architects, contractors and engineering firms. The structural engineer must be able to offer insightful and pragmatic suggestions, and doing that requires strong technical knowledge, depth of experience and problem-solving abilities that have been well-honed over time.

“To this day, only ten states actually license structural engineering as a unique discipline; among these ten states, the requirements vary substantially. This has made it very challenging for contractors to determine what skills and experience structural engineers bring to the table,” says Schmidt.  “In the 40 states that do not specifically license structural engineers, they are typically licensed as Professional Engineers. This is a generalist license that does not distinguish between structural engineering and related disciplines such as civil engineering. As such, engineers in these states are allowed to perform structural engineering tasks, yet there is no formalized way to know if they possess the in-depth skills and experience that can make all the difference in a major project.”  (For a state-by-state look at the 10 states which do license structural engineering, click on the map above to enlarge the image).

SECB certification is the structural engineering profession’s self-imposed benchmarking process that was initiated in 2003, when the National Council of Structural Engineers Associations (NCSEA) voted to establish an independent entity to develop a process of certification. One of the biggest challenges the structural engineering profession faced, until SECB was formed, was that there were no clear benchmarks by which to evaluate the skill levels of professionals in the discipline.

Eight years after its formation, and over 1,752 certifications later, the goals of SECB remain, since there is still no national licensing process for evaluating the discipline-specific skills and expertise of structural engineering professionals. SECB hopes to transform its certification process into the basis for national licensure.

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What do you think?  Should a national licensure program be established?  What about other disciplines within the engineering umbrella– should there be separate certifications for those disciplines too?  From a legal standpoint, if an engineer has the SECB designation, he may be seen as holding himself out to a higher standard of care.  With a higher standard of care may come increased liability.  Is this fair for an engineer who voluntarily studies for additional certification?

Share your thoughts on certification and specialization in the comments section, below.

Learn to Negotiate Construction Contracts with no “Deal Breakers” (Tue Tip)

As I and others have said on this blog many times, contracts are extremely important in the construction world.  Deciding what contract terms you want, deal breakers, and which terms you can live with, is more of an art than a science.  Two upcoming FREE webinars deal with contract issues for design professionals:

First up, Traveler’s Insurance Company has a webinar entitled “Helping Design Professionals Build Better Contracts.”  The seminar presenters will discuss:

  • How to identify risk management issues associated with contracts
  • What terms are deal breakers
  • Which techniques to apply to better negotiate fair agreements
  • Why it’s important to implement contract risk management practices 

The webinar takes place Wednesday, October 19th, at 11:30 a.m. ET.  Although the webinar is free, registration is required.  To register, click here.  

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Next, the folks at Hall & Company are hosting a webinar entitled “Contract Negotiations for A/E Professionals,” and will cover:

  • the importance of the overall A/E contract; 
  • how contracts can impact your indemnity obligations;
  • how your contract can affect the standard of care and increase risk;
  • how your scope of work and mundane contract clauses can impact the A/E bottom line. signing contract
Their webinar takes place Tuesday, October 25, 2011 at 1:00 pm ET.Again, registration is required for their free seminar.  Register here.
 

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Photo: (c) Frank McMains via CC

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