Author Archives: Melissa Dewey Brumback

Owner Drafted Indemnity Provisions: Kryptonite for designers?

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be careful sign
Be careful with indemnity provisions (and small animals)!

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Are you being asked to sign contracts that are prepared by the Owner?  If so, do you have a policy in place to have each such contract, Master Agreement, or Statement of Work be reviewed by your attorney?  You should.  An ounce of caution is worth a pound of cure, as they say.

One of the most important contract terms to review in any contract is the indemnity provision.  I’ve discussed how indemnity provisions work in the past.  If you haven’t already read that post- do it now.  (Go ahead, I’ll wait).

Today, I want to address indemnity in the context of non-form contracts presented to you by an Owner for execution.  Generally these are presented with no expected negotiation on your part.  Remember, however, that everything can be negotiated.  A few small changes up front can save you lots of time and expense later if there is ever a lawsuit. 

Because these contracts are drafted by the Owner (or, rather, his horribly biased zealous attorney), they tend to be overreaching and broad.  Recent contracts I have reviewed ask the architect to indemnify the owner for the design team’s negligence, “regardless of whether or not other parties are also negligent.”  That phrase is very troubling, and should be stricken.  Otherwise, the Owner will have an argument that because the design team was negligent, they must indemnify the Owner for all negligent acts (other than the Owner’s own negligence), including those by other parties.   

A better, proportional indemnification provision should include indemnification “to the extent the claim is found to be caused by the negligence of the design team.”  (Even better, of course, would be a limitation of liability based on your design fees, but I recognize that it is often impossible to negotiate such a limitation with some blood-sucking sophisticated Owners.)

Do you have comments about indemnity provisions in contracts you have been asked to sign?  Drop me a note in the comment section, below.

Photo via Creative Commons License.

One Stop Shopping: the Green Building Directory (Tue Tip)

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design of green lighthouse in France

A green lighthouse. Literally! 

 Wouldn’t it be nice to have a handy resource of “green” builders, tradesmen, and material suppliers when you are designing your next project or writing your next set of specifications?  Check out the Western North Carolina Green Building Directory, where you’ll find all this and more.

Know of a resource for design professionals?  Drop me a line and I’ll feature it in an upcoming “Tuesday Tip.”  And, sign up for email delivery of all blog posts to your inbox (through the subscription box at the top of the page) so you’ll never miss out on practice tips!

Photo:  (c) Olivier French via Creative Commons license.   Post updated 3/9/2017.

Upcoming Events for Engineers & Architects (Tue Tip)

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two smiley face cupcakes

Two is better than One

From time to time I get notices of conferences, webinars, and teleseminars that relate to construction professionals.  I try to pass as many of the worthwhile ones along as I can, so you know what events are available.  Today, I have a “two-fer”:  a telephone marketing training aimed at Engineers, and a green building program aimed at Architects.

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Up first, who doesn’t like FREE?  On April 16th and April 26th, at 8pm ET, Anthony Fasano, P.E., LEED AP, ACC, author of Engineer Your Own Success,  is hosting a Teleconference.  The program is called “7 Steps to Building LinkedIn Relationships that Will Help You Advance Your Career“, and it is aimed at helping Engineers build their career through LinkedIn.  While the program is free, you must pre-register.  If you pre-register and cannot attend live, the recording will be available for 48 hours after the call in time.

Next, the Greenbulidingfocus Conference & Expo 2011 will be held in Charlotte, North Carolina.   This “green building” event is held at the Charlotte Convention Center on April 20th and 21st.  All tracks carry CEUs.   FREE PASSES are available for out of work architects– contact AIA Charlotte for details.

Sign up now for email delivery of my blog posts so you never miss out on any of these opportunities.  And, if you know of a conference, webinar, or event that readers of this blog might find useful, drop me an email. 

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Photo: (c) Blog Blond via Creative Commons License.

A turn-around in the business of Architecture?

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Architecture Buildings looking up

Architectural billings are up, according to the AIA Architectural Billing Index (ABI).   The ABI was up slightly in February to 50.6 (compared to 50 in January), marking the fourth straight month at 50 or higher – after nearly three years of almost uniformly decreasing billings.  As Mike Purdy notes on his Public Contracting Blog, the increase in architectural services usually foreshadows increases in all downstream construction activity.

Visit Mike’s post for links to more detailed information relating to the ABI.

How is your Firm’s net profit?  Are you holding steady?  Seeing an uptick?  Drop me a note and tell me your biggest legal challenge holding you back, and I’ll address it in a future post, so you can concentrate on doing what you do best.

 Photo (c) Dennis Mojado via Creative Commons license.

Certificate of Merit to sue architects or engineers? (Tue Tip)

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You know how they say the best laid plans can go awry?  Just as unforeseen issues pop up in construction, they also pop up in the practice of law.  So, while it is still Tuesday, I apologize for the late hour of my post.

I bring you good tidings, despite my lateness.  Right now, in the North Carolina General Assembly, is a proposed bill that would require a Certificate of Merit to be filed in civil litigation against an architect, engineer, or a design firm.  If it passes, this would require that an unbiased, third party (who is also a licensed professional) has reviewed the claim and believes it has merit.  

boy holding certificate of merit

This boy has his certificate of merit: will lawsuits against architects and engineers require the same?

Such a pre-lawsuit requirement  has long been a right that doctors enjoy.  Now, there may a chance for architects and engineers to also enjoy protection from otherwise frivolous lawsuits. 

The bill has been introduced, had its first reading, and has been referred to the Judiciary Committee.  While the bill is a long way from passage, it is a good sign that the public recognizes too often professionals are the targets in lawsuits simply because of their “deep pockets” (really!) or their insurance coverage. 

You can keep track of the progress of Senate Bill 435 here. 

(h/t to Kathryn Westcott, ACEC-NC Executive Director)

Photo: (c) John Dolan via Flickr/Creative Commons License.