Greetings all! Today, I have the honor of writing a guest post on Chris Hill’s blog, Construction Law Musings, on the topic of how to communicate– and how not to miscommunicate–on a construction project.
I know that I talk a lot about communication on this blog– and with good reason. One of the number one reasons complaints turn into lawsuits against architects and engineers (and contractors, and others) is a failure of the parties to understand– really, truly understand– one another.
Check out my post, and pass it on.
Photo courtesy openclipart.org.
My 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):
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.
Happy “Construction Safety Day” everyone! James White of Maxwell Systems, has shared with me an infographic showing all sorts of data about construction fatalities.
As you might expect, falls are the #1 source of construction-site fatalities, followed by being struck by falling objects, electrocution, and being caught between objects, in that order. Together, these “fatal four” make up 57% of all construction worker deaths.
To view the complete infographic, click here.
Thanks, James, for the sobering reminder.
Anyone recognize the photo to the left? If you are of the Millennial generation, this is a quaint thing called a public pay phone. They used to be everywhere. Imagine, not having a cell phone to keep you in constant contact with Big Brother…………. [the good old days].
As you may be able to tell from the fact that the receiver is hanging down, this phone has seen better days.
What does this have to do with construction? Everything. Just because something is done one way– even for years, or decades– doesn’t mean it should stay that way. Just as you learn new technical skills and change your designs, you should also update and modernize your office practices.
What do I mean by office practices? How you open a project. Whether or not you get a contract in writing (you should). How you keep and store project files both during and after project completion. You should also modernize and update your contracts. Still using 1997 AIA documents? Maybe it’s time to step it up to the 2007 forms. Have a custom “terms and conditions” contract? When was the last time you reviewed it with your lawyer? Laws change just as construction techniques change.
A little planning now could save you in legal fees and headaches later on, in the dreaded discovery phase of a lawsuit. Just because you’ve always done things a certain way, doesn’t mean you should always keep them the same. After all, when was the last time you saw a public pay phone?
Your turn. What are your standard operating procedures? Do you know how your project files and emails are saved by each employee? Do you know if your employees know your SOP? And, you do have a written contract, right?
Phone booth in the Countryside by Melissa Brumback.
The newest version of the LEED ratings system, LEED v4, has officially been released. For a comparison of the major changes between LEED 2009 and LEEDv4, check out this downloadable form from the USGBC.
As the folks at Schinnerer’s pointed out, there is one major change that is fraught with peril for design professionals– the requirement for increased transparency concerning the composition and performance requirements of composition materials.
While design firms always had a level of responsibility for ongoing product research, the lack of standardized, affirmative industry data made it difficult for design firms and project owners to assess the impact of building materials on human health.As with many aspects of sustainability in design and construction, the danger to design firms is likely to come from self-inflicted perils. When a firm accepts responsibility to “ensure that a project meets its goals by using the best products that align with project requirements,” it is essentially giving the project owner a guarantee that is both beyond the firm’s control and uninsurable by any insurance carried by a firm.
What is an architect or engineer to do? NOT make guarantees. That’s the easiest way to avoid potential problems and lawsuits down the road.
Inform your client that any green design guarantees may cause an otherwise covered claim to be denied by your errors & omissions insurance carrier. Show them this post, or the Victor O. Schinnerer (CNA) blog article. Whatever you do, do not make guarantees related to green design.
Your turn. What has been your experience educating clients concerning green “guarantees” and the uninsurable nature of any such contract provisions? Share in the comments section.