Yesterday, I was part of a panel at the NC Bar Association Construction Law Winter Meeting, discussing insurance issues for design professionals.
One topic we touched on was how to avoid invalidating your insurance. As most of you know, Errors & Omissions insurance (“E&O” coverage) is meant to provide coverage for mistakes you may make in performing your professional architecture or engineering services. E&O coverage is important to protect you in the event of a lawsuit because, as you know, no set of plans is perfect (nor is perfection the standard of care).
Be careful, though. Do not promise to provide a higher standard of care than the “professional standard“.
If you are asked to sign a contract that states you will use your “professional best,” “best efforts”, “highest care” or similar, you are being asked to sign something that could cost you your E&O coverage.
Examples of such language:
[Architect] [Engineer] shall perform the Services in accordance with the highest standards of professional competence in the industry.
[Architect] [Engineer] shall exercise a high degree of care and diligence in providing the professional services.
Architect’s] [Engineer’s] services shall be of first class quality and free from defects.
E&O policies cover you for failing to meet professional standards, but not in cases where you agree by contract to provide a higher/better/best standard.
Explain the risks in such language to your owner clients. No owner will want to put your insurance policy in jeopardy, and they should be willing to strike or modify that language to ensure that your work on the construction project is fully protected and covered by your E&O policy.
Some examples of coverable standards:
All services to be performed shall be performed in a manner consistent with that level of care and skill ordinarily exercised by members of Designer’s profession.
All services shall be performed in a manner consistent with that level of care and skill ordinarily exercised by members of Designer’s profession currently practicing in the location of the project for which the services are rendered, or similar locations.
Remember this, and make sure your future construction contracts contain favorable language that will actually be insurable. You know– the whole reason you have professional liability insurance in the first place!
Have you ever been asked to agree to provide your best efforts? How did you handle the situation? Share in the space below.
Is there a liability difference between My Best and the Profession’s Best?
Thanks for your question. Short answer, probably not. “My best” may be slightly better than “Profession’s Best” in that, arguably, your own best could be a LOWER standard of care, but do you really want to go on record in a court of law some day that your best was less than the industry standard or industry best?