Author Archives: Melissa Dewey Brumback

When the Civil Engineer wears the Hero’s Cape (book review)

Posted on by

“It’s one thing to erroneously tell someone to drive through a lake.  It’s quite another to drive someone through a lake.”  So explains fictional Civil Engineer Jake Bendel when discussing the need for complete accuracy in a fully automated highway system in the “civil engineer thriller” Civil Terror:  Gridlock by J. Luke Bennecke.  Civil Terror

In Gridlock, Bennecke, a civil engineer in real life, describes a near-future in which traffic accidents and heavy commutes are a thing of the past, thanks to a “100% accurate” roadway system of self-driving cars which utilize GPS, cell-phone pings, and a loosely-described “proprietary system” of tracking signals.

Things are going along well until a terrorist devises a scheme to kill thousands of commuters by subverting the computer code and causing massive traffic accidents all up and down the California highway system.  Thanks to planted evidence by the terrorist, the FBI suspects Jake and not the true villain.  What follows is a fun crime-thriller-esque novel in which Jake proves to be the unlikely hero.

In the novel, Bennecke explores the realities of a fully-automated traffic system (versus the current one-car-at-a-time system), and the tremendous benefits that could result.  It is also a fun read, especially for civil engineers and those that love them.  As fictional Jake in the novel points out, “[N]obody wants to read a technical thesis about the gritty details of fully automating cars and trucks on freeways…. Unless they were having a hard time going to sleep, ‘cause that would certainly do the trick.”  Instead, Jake in the novel, and Bennecke in real life, pens a novel where the civil engineer gets to wear the hero’s cape, vanquish the bad guy, and save the day.

This book is not an in-depth discussion of the engineering, legal, and insurance implications of self-driving cars.  Instead, it is a fun, quick read where the engineering concept is simply one of many plot points.  Even so, this might be novel as a gift for the favorite civil engineer in your own life!  (after all, Mother’s/Father’s Day is coming!!]

Have you thought about fully-automated highway systems?  See the promise/problems?  Share in the comment section.

[Editor’s note:  I received a review copy of this book for consideration, but will not receive any benefit if you purchase it].

Certificates of Merit for NC lawsuits against engineers and architects? (still no)(law note)

Posted on by

Certificates of Merit  are documents intended to show that a true issue exists with a professional’s work, prior to that person being sued.  While North Carolina does require that a person suing a medical provider first have the matter reviewed by a professional (and attest to that in the Complaint), there is no requirement for any review prior to a lawsuit against an architect, engineer, or surveyor.  Thus, anyone can file a lawsuit against an engineer/architect/surveyor without first having their case eyeballed reviewed by another professional. magnifying glass

Over the years, there have been attempts at adding a Certificate of Merit requirement to design professional lawsuits.  See, for example, examples here: from 2005; from 2007;  from 2011; and from 2013.

While many states do have Certificates of Merit for lawsuits against licensed design professionals, North Carolina, to date, does not.  This is a shame, because having a professional review a potential error *before* a party spends the time and money to file a lawsuit, can only help eliminate frivolous, merit-less claims.   To win a lawsuit against a design professional, a party will need to have an expert testify that they were negligent.  The Certificate of Merit just ensures that there truly is a valid dispute before a design professional’s name and reputation get pulled into expensive, perhaps unnecessary, litigation.

Would a requirement for a Certificate of Merit eliminate unnecessary claims?  Perhaps not.  But, it gives all parties an honest “first look” at the alleged design errors before the lawyers sharpen their claws begin filing their lawsuits.

Share your thoughts on such certificates in the comments, below.

 

Do Not Pass Go! Duty to Defend in a Professional Services Agreement (law note)

Posted on by

sword to defendRecently a client asked me to review a contract for his Firm.  The Owner, who had prepared the draft, had inserted a rather stringent “duty to defend” clause.

As I told my client, a duty to defend clause is not a good idea for a couple of reasons.  First, if you agree to provide a defense, what that means is that you are footing the bill for the Owner if the Owner is sued by another party.  Think about that for a minute.  You are paying legal fees for someone else’s legal defense.  You may or may not be able to direct the litigation or have a say in who is hired.  Can you say open check book?

Secondly, and more importantly, the duty to defend is almost never insurable.  What that means is that your professional liability carrier will not be footing the bill—your Firm will be doing it.  This is not a case of adding the Owner as an additional insured, so do not confuse the two.  Agreeing to a duty to defend is an extremely burdensome, and potentially costly, mistake.

What do you do if your Owner is insisting on such a clause?  Try to get the clause written out of the contract, period.  Point out to your Owner that it is not covered by your professional errors  & omissions policy.  That alone is often enough to get Owners to agree.  You might also contact your insurance carrier/agent to add weight to your statement.  They can point to the provisions in the policy that will likely exclude coverage.

If the Owner will not strike the provision, then what?  Seriously think about whether this is a risk you can afford to take.   What type of project is it?   Do you know the contractor and other parties—are they reputable and qualified?  And most importantly, is the profit to your Firm such to justify the potential risk.  Usually, the answer to the last question is no.

Have you seen a “duty to defend” in an Owner contract?  Did you agree to it?  Share in the comments below, or drop me an email.

Photo: (c) MatthiasKabel via Creative Commons Attribution-Share Alike license.

What you don’t know about construction law can hurt your engineering firm (law note)

Posted on by

truckbridgeWelcome to a new year!  By now, you’ve eaten the last of the Christmas cookies, opened all of your presents, and rung in 2019.  Back to business, right?  The new year is always a good time to remind your employees, and yourself, that there are no shortcuts on the success train.

Sure, you can sometimes skate by for awhile, but karma has a way of catching up with you.

One thing to keep in mind is that if you practice in multiple states: be sure you are well aware of the rules and regulations concerning your license in each state.   Each state does things a little differently, and what may be perfectly acceptable in one state may not be in another state.

For example, I had an out of state professional design firm that was unaware of the supervision requirements of non-professional staff that is required under North Carolina law.  Another client had some North Carolina references on its website without an appropriate disclaimer as to who was, and who was not, licensed in North Carolina.  In both of those cases, I was able to help the professional firms get out from under the violations with minimal damage, but it cost time, money, and aggravation.

Do violations always get discovered?  Not always, but- like speeding– a violation is a violation is a violation, and at some point, your number may be up.

Save yourself the headache, bite the bullet, and make sure you retain competent professionals in *each* state that you are licensed in make sure that you are playing by that state’s rules before you work in that state.  (Obviously, if you have North Carolina questions, I’d love to work with you!)

You’ll thank me later.

Your turn.  Have you ever been surprised to learn about a state’s specific requirements after you’ve already violated those requirements?  Anonymous confessions encouraged– let’s learn from each other!  (or, drop me an email!)

 

 

How your disgruntled client can turn into your very own car crash! (and how to avoid it)

Posted on by

Over the summer, I was involved in a car crash.  It was *not* my fault– heck, I wasn’t even driving but riding shotgun.  But it wasn’t my husband’s fault either.  A guy pulling out of a parking lot was watching the traffic coming up the road, but failed to see our car sitting in the same intersection waiting to turn into the same parking lot.  He ran right into us.  Here was the damage:

car damage

 

It may not look like much, but the panels were so damaged it cost almost $9k in damages, over a month of car rental fees, and a LOT of aggravation on our part.  The guy who hit us was very nice, apologized, and was concerned if we were injured.  His insurance company ultimately paid for all of the damage.  However– it wasn’t he who suddenly got a new part time job– that was me.  I had to spend lots of time with police, insurance representatives, auto body mechanics, rental car places, you name it.  If you’ve ever been in an accident, you know the headache involved.  In fact, I have had 2 other accidents over the years (again, neither of which were my fault– I think I’m just a beacon for bad drivers?).  One of those accidents was a 4 car accident– a driver hit my car, pushing it into the car ahead, which went into the car ahead of that.  In that accident, my car was actually totaled.  Fun times!

How is this relevant to your life as an architect or engineer?  If you stay in the game (that is, the design field) long enough, chances are, you will, at some point, end up dealing with disgruntled clients.  One of those clients may even file a lawsuit against you.  Or, for that matter, you may end up getting sued by another party involved in your construction projects– one that you don’t even have a contract with.

If that happens, you too will have a new part-time job– working on your defense.  Think meetings with your attorneys, calls with your insurance adjuster, unbilled time sitting for deposition, searches through all of your project emails and files, and the potential for a long jury trial (again, unbillable time for you).  Sounds fun, doesn’t it?  Maybe even makes you want to scream with the unfairness of it all.

The thing is, while there are certain things you can do to minimize your risks of being sued and your chances of prevailing if you are sued, even if you win, you’ve lost in time and opportunities.  In a fair system, you wouldn’t face this for unfair or frivolous claims.  In a fair system, I wouldn’t have to spend hours dealing with the fall out of an accident I didn’t cause.  But sometimes, stuff happens.

Just like there are ways of minimizing your risk of car accidents (turn signals, watching for inattentive drivers) and reducing damage when they occur (using seat belts, driving slower), there are also ways to minimize your risk of a lawsuit and reducing your damage when they do occur.

Some ideas:

  1. Have a written contract for every project, every time
  2. Get that contract reviewed by your insurance carrier and lawyer
  3. Be sure to specify what you will, and will not be doing in your scope of work  (being redundant is good here!)
  4. Establish clear payment terms, and expectations about fees for additional services, up front.
  5. Have good document management systems in place, which you’ll need for if/when litigation does occur
  6. Be aware of warning signs that there may be a lawsuit in your future; and
  7. If you do get sued, don’t panic, but take some steps to help your case get off on the right foot

But remember, when all is said and done:  you place your bets and roll the wheel.  Sometimes, your number comes up.  While these tips cannot prevent being sued by a disgruntled client, they can lessen the risk and impact.  And that is *almost* as good as getting your car fixed, returning the rental to the shop, and quitting your new part time job!

Have you had to suffer through an unfair lawsuit from a disgruntled client or third party?  Tips you wish you had known earlier?  Concerns about your own contracts?  Share in the comments below or drop me an email at [email protected].

Photo: Creative Commons License