Category Archives: Law Notes

Bats, Water, Soil, and Bridges- an Engineer’s dream

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Want to know how bats may effect your engineering plans?  Want to hear about cool new bridges?  Read on.

Over the past month, I’ve had the pleasure of attending two events hosted by the North Carolina Chapter of the ACEC (American Council of Engineering Companies).  The first of these was the Joint Transportation Conference, held in conjunction with the NC DOT.  The second was the annual ACEC Engineering Excellence Awards.  At both events, I learned interesting information that engineers should know. Today, I will discuss the Transportation Conference, including some new regulations and unusual design methods.  I will save the highlights from the Excellence Awards for later this week.

Northern Long-eared Bat

Northern Long-Eared Bat

  1.   It’s a cave, it’s a bat, it’s bats, man!     Did you know that your future bridge project may be effected by the Northern Long-Eared Bat?  It’s true.  Right now, the federal government is considering listing the bat on the Endangered Species List, due to the 98-99% mortality rate the bats are experiencing due to “white nose syndrome”. Over 1,700 projects in North Carolina could be impacted, including work on bridges, culverts, abandoned buildings, and guardrails–essentially, any activity involving tree clearing, structure demolition/removal, or structure maintenance. On November 26th, 2014, the US Fish and Wildlife Service extended the comment period to discuss the implications of listing the bat on the endangered species list. If the bat is listed, there is no grandfathering of projects.  All projects will immediately be required to engage in protective activities. Stay tuned, but be aware that your transportation projects could be effected starting sometime next year.

 

2.  Is that a pirate on your map or is it worse–soil contamination? 

known and possible soil contamination

known and possible soil contamination

At the conference, we also heard from the GeoEnvironmental Section of NC DOT on their geologic symbols for known or potential contamination. Known contamination consists of soil or ground water samples that have been analyzed; or by evidence of such contamination as cracked transformers, battery casings, unusual odors while excavating, or new anecdotal information about past use. Potential contamination, in contrast, is for areas where there is no data, but historical maps or photos which indicate current or assumed past uses of possible contamination, such as gas stations, dry cleaner facilities, auto body facilities, chemical manufacturers, landfills, and manufacturing plants. Both known and potential contamination sites are important for designers, as they consider:

  • large cuts, drainage, utilities, or stream relocations in contaminated areas
  • selecting chemical resistant construction materials
  • additional costs for materials, remediation
  • other unanticipated costs or complications

 

highway stormwater program     3.  Water, water everywhere!  We also heard what’s new with the Highway Stormwater Program, including the updated Post-Construction Stormwater Program and the companion Stormwater BMP Toolbox manual. To learn more about these programs, check out:

  • The NCDOT Stormwater website, which contains useful links; and
  • The Highway Stormwater youtube chancel of training videos, which is still in development but will include environmental sensitivity maps, nutrient load accounting tools, and stormwater management plans.

 

Dragon Bridge

Dragon Bridge

4.  Cool, cool bridges  One of the highlights of the conference was hearing about some truly unique bridge designs, including:

  • The Tappan Zee Hudson River Crossing, in New York, featuring twin-tower cable stayed structures and all electronic toll collection
  • Vietnam’s Dragon Bridge, a truly working piece of art; and
  • The Milton-Madison Bridge Slide, (Indiana/Kentucky) the longest bridge slide in North America.  The Milton-Madison Bridge Slide was  a feat of engineering design.  Using “truss sliding” a new 2,427 foot long truss was moved along steel rails and plates and “slid” into place atop the existing, rehabilitated, bridge piers.

 

What about you?  Did you attend the conference?  If so, what insight did you take away?  Share in the comments, below.

 

Photo credits:  Bats ; soil marks from NCDOT presentation; Dragon Bridge

Don’t Let Construction Problems Become Construction Disputes (guest post)

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Chris HillTo start our week off right, today we have another important article from guest blogger Christopher G. Hill, LEED AP.  Chris is a Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC.  He authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.  His practice concentrates on mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.  [His blog was also one of the first construction law blogs I found and followed, even if he is a Duke alum!]  Take it away, Chris!

First and foremost, thanks to Melissa for inviting me back to post here at her great blog.  She continues to invite me back despite my being a Blue Devil (and I try not to hold her Tar Heel status against her).

So much of discussion relating to construction law and construction lawyers centers on the litigation of disputes.  This discussion comes in many forms from avoidance of such litigation through the early intervention of good counsel prior to getting into a project to what sort of resolution mechanism to use. Another branch of this discussion is essentially the right way to pursue your claim (or as some may read it start the dispute ball rolling).  Sometimes a payment bond claim is the best method while others a straight up contractual suit is the best way to go.

Of course, all of this discussion presumes that there will be disputes.  While I agree to some degree that in the Murphy’s Law riddled world of commercial construction, problems will arise.  These problems need not rise to the level of a dispute that requires outside (read court or arbitrator) intervention.  A few tips that are easy to write, but admittedly hard to practice at times can hopefully keep problems from blossoming into disputes.  I’ve listed a three big ones here:

  1. Use “in house counsel.” Yes, I know that most of you engineers, architects, commercial general contractors and subcontractors out there aren’t big enough to either want or need a full time attorney on the payroll. What I mean by this is that when problems occur (or preferably before doing so), give your friendly local construction lawyer a call. As I learned from my dad, an ounce of prevention and all that. That 10 minute phone call may help avoid many hours of time and bills from your attorney later down the road.
  2. Build Relationships. This seems like more of a marketing tip, but it is also a risk prevention strategy. I have seen many a potential dispute get resolved with minimal or no intervention on my part simply because the general and subcontractor had a good working relationship. With the right team oriented approach and communication many a jobsite problem can be resolved in the pre-dispute stage. If the two companies don’t know each other, this is less likely to occur.
  3. Communicate Up Front. I know, I beat this drum a lot. Why? Because it’s a big deal. Setting the right expectations through proper communication and negotiation on the front end will set the terms of the “deal” and give all involved a guide for how to deal with problems as they occur.

Following these three tips will help you avoid construction disputes and the hefty attorney fees that come with the prosecution of those disputes.

Can you think of other tips that we can add to the list?  Let Melissa and me know.

Thanks Chris! As always, you hit the nail on the head (pun intended). For those that don’t already follow Chris’ blog (and why don’t you???), do check it out and show him some blog love. You’ll learn a lot, and be glad you did.

Is your design professional construction contract too friendly? (law note)

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not friendlyMy 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):

not friendly sign

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.

Photo (c) Melissa Brumback  Creative Commons License

That’s not the way we’ve always done it! (Why you should update your office practices)

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Phone boothAnyone 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?

 Creative Commons License
Phone booth in the Countryside by Melissa Brumback.

New Green Standards; Same Green Warnings for Architects & Engineers (law note)

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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.LEED croppee

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.

Notes the insurance carrier:
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.

Photo adapted from (c) Albert Herring.