Category Archives: Law Notes

If you get ‘reported to the Board’ for your Professional License (law note)

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The NC Board of Architecture and the NC Board of Examiners for Engineers and Surveyors (as well as other Boards, including the NC Licensing Board for General Contractors) have grievance procedures in which anyone – client or not—can file a grievance against you.  That’s the bad news.  The good news is that the Boards have seen it all before, and if the grievance is someone unhappy about a bill, or using the process to harass you for unfounded reasons, they will recognize those complaints for what they are.

HOWEVER, this does not mean that you should treat any grievance, no matter how unfounded, lightly.  The first thing you need to do is contact your insurance broker/agent and report the matter.  Often times, your insurance carrier will hire an attorney (someone like me) to defend you free of charge (at least up to a certain dollar amount).  This is part of your insurance coverage, and you should take full advantage of it.

problem? write a grievance t-shirt

What if you do not have professional errors & omissions insurance?  First, get thee to an agent asap and get yourself some for any future issues.  Second, hire a lawyer anyhow.  You could do it yourself if you choose to do so (although  “a Man who is his own lawyer has a Fool for a Client” ).  But whatever you do, do not ignore the Board’s inquiry.  Respond by the deadline they give you, with all details and information that they ask for.  Sit down for an interview with the Board investigator.  Do not bury your head in the sand and hope it will all go away on its own. 

And no, most cases do not result in loss of your professional license.  There are some egregious cases where the license is in jeopardy, but those are few and far between.

I have helped clients with Board grievances survive the process.  As I have told them, a Board grievance is never good news, but it doesn’t have to break you.  Use your available resources to minimize any negative outcome.

Photo: Cristian Lopez  Credit: Printerval  CC by NC 4.0

Always keep your time limits in mind—to know when you can sue, and when you can no longer be sued (law note)

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As the calendar year is getting a little long in the tooth, the subject of time becomes top of mind.  Time, in litigation, can make or break your ability to sue (or be sued).

A recent blog post by blogger John Caravella addressing statutes of limitations in New York (6 years) and Florida (5 years) brought to mind the issues that sometimes surprise folks working in North Carolina.

In North Carolina, the statute of limitations is (generally) set at 3 years for breach of contract matter, including breaches of construction contracts.  However, there are always exceptions.  The statute of repose in North Carolina for damages to real property is 6 years.  What that means is that if there is a ‘latent defect’ that is not obvious right away, you may still have a claim beyond three years (but not beyond the 6 year repose limit).

stop watch

Often times, designers enter into AIA contracts where the law of the jurisdiction where the project is located controls the contract.

If your project is in North Carolina, there may be very different statutes of limitation than if you were working on a project in another state.  It pays to always be aware of what state’s laws you are working under on a project.

Have you ever been surprised by a construction time limit that was different than you expected it to be? How did you discover it, and how did you handle it?  Let me know in the comments below, or drop me an email at mbrumback@rl-law.com.  

Time piece © rawpixel.  Public Domain

Being the Bearer of Bad News (Sounding the Alarm on construction issues early and often) (law note)

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Our recent look into termination brings up another issue important to architects and engineers–  how to sound the alarm about construction or building code violations.  Sometimes, a project owner may be so focused on project completion that they want to overlook the sub-par work that may be occurring in an effort to get project open “on time”.  In such cases, only if a life safety violation is reported to the authority having jurisdiction will the owner finally terminate a faulty contractor from a construction project.

Bad News

They kill the bearer of bad news sometimes, don’t they?

Even if the work is not a life/safety issue, it is important that when delivering bad news about the quality of work that your notice be early, loud, and frequent.  Basically, everyone involved should be aware, through written communications, that there is an issue that needs to be addressed on site, the contractor is messing up the construction, and what needs to be done to fix the issue(s).  If the owner is willing to live with the faulty work (and it is not a life/safety matter), then at least you’ve provided notice and warned them of the issue.

Even then, you could get dragged into litigation later on.  That’s right– even if you state, in writing, that something is happening which you do not approve of, and you limit your own further involvement in the project, you can be sued.  So if the issue is significant enough– you may have to walk off the job yourself.  

Think of the recent Titan tragedy.  One OceanGate employee has claimed that he was  fired after he raised safety concerns.  Despite warnings some several other experts that the submersible was not properly designed and safe for the underwater exploration, the company went ahead with the ill-fated trip.

As a design professional, you cannot always help owners help themselves, but you must try to do so.  You must document the issues, multiple times, multiple ways, to multiple individuals.  Even if that means losing out on a job.  As you watch others (but not your own Firm) get dragged into litigation over construction issues that you previously warned the owner about, your future self will thank you.

Your turn:  have you ever had to deliver very bad news about a project to the owner?  How did you do it? Did the owner take action?  Share below in the comments, or drop me an email.  

Photo (c) Bad by Nick Youngson CC BY-SA 3.0 Alpha Stock Images

 

Construction Termination Issues Part 6: This is the End (Tips for the design professional)

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Whether your role is in helping analyze the contractor’s work on the project to certify a contractor’s termination for cause, or you are being shown the door yourself, and everything in between, termination is a subject that is ripe with potential problems.

pencil tipsConsider these summary tips as part of your practice, every time the termination idea arises:

  1.  Remember that you are the neutral and must be impartial between Owner and Contractor
  2. After you have made a fair decision, document your decision to the Owner and Contractor
  3. Provide options less nuclear for Owners– stop work; removing scopes of work; etc.
  4. Guide your Owner on proper termination, notice provisions, and the like
  5. Document project status, regardless of who is doing the firing and who is leaving the project
  6. Document next steps in the work on the critical path if you are the one leaving the project
  7. Discuss the use of your subconsultants if you are leaving
  8. Protect your plans and specifications, and only release them with protections (licensing fee; limiting language on the plans; and/or indemnity agreements)

Did you miss any of the series?  You can find it all at these links:

Or, use this link if you’d rather have a downloadable PDF of the entire series.

Still have a burning question that I haven’t yet addressed?  Let me know below or drop me an email.

Until next time……… Hasta luego!

Photo by Petr Kratochvil /Public Domain Photos

Construction Termination Issues Part 5: What if You are the One that Wants to Quit?

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Architects and Engineers are sometimes pleasantly surprised to find out that they, also, can terminate those crazy, hard to deal with Owners—at least, if the Owners fail to make payments as required.

breaking heart

“It’s not you, it’s me!” (It’s you)

You can also terminate for Owner delays to the work, or where you think the contractor should be fired but the Owner disagrees.   Again, the standard 7 days written notice is required.  (See B101 §9.4).

Do you have to walk off the job if they are not paying you?  No—you could exercise the smaller remedy of suspending services (with 7 days written notice) until payments are caught up or the contract performance is corrected by the Owner.   (See B101 §9.1).   Suspension rather than outright termination is a softer approach when working with an owner you do not want to burn (too many) bridges with.

Can the Owner use your plans and specs?

The default AIA design professional contract provides that the drawings and specifications are the copyrighted work of the DP (B101 §7.2) and that the Owner is given the limited, nonexclusive license to use them only for the Project.  (B101 §7.3).  However, all bets are off if you quit because they are not paying you.  [Under ConsensusDocs, copyright issues are essentially the same].

 In a “rightful termination”, the owner’s license to use your work terminates.

So, you should remind the Owner– in writing, of course– that they are forbidden from using your plans.  Now, you can negotiate a release of the documents in exchange for a release of liability or indemnity agreement.  The AIA provides for a “licensing fee” under B101 §11.9.

The right to your designs is a critical one—protect it, and use it to protect yourself.  Consider both the licensing fee and an indemnity agreement to protect you in the case where you are leaving a project that is still being constructed.

Have you ever “fired” a client?  How did they take it?  Was it a relief to not have to continue working with them?  Share below, or shoot me an email.

And stay tuned for the conclusion of our series next week, in Part 6:  Termination Final Remarks

Photo (c) Pixy.org