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

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 2007from 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.

 

Green & Sustainable Roof Design- A Durham Case Study

A recent Roofing Magazine article featured a Durham, North Carolina green home belonging to Alison Trott.  The home is notable for its extensive green and sustainable roof features.

green roof Durham

For a relatively modest 3,400 sq footprint, the house has many different types of roof designs, including a standing seam metal roof on a high gable, a standing seam metal roof that becomes a metal wall, a built up roof with floating deck and a glass railing system.  Then, there is a full green roof over one wing of the house.

That green roof, from Xero Flor America (a Durham company and client of my Firm), was laid down over a hot-mop coal tar pitch roof by Asheville company Living Roof Inc.  Architect for the project was Tina Govan / Somos Design of Raleigh, together with CUBE design + research of Chapel Hill.  Check out the full article in Roofing Magazine’s April 2018 issue.

If you haven’t already, subscribe to the blog, and get your free White Paper by clicking on the icon on the right hand side of the Blog’s home page.  And, if you have any green roof questions, let me know and we’ll see if we can’t get the experts to respond.

 

Design Professionals’ Stamping & Sealing Obligations (50 state survey) (law note)

Stamping Ground KYDo you sometimes wonder if you are meeting your stamping & sealing obligations in each state where you practice engineering or architecture?

Ever find yourself with some questions about how another jurisdiction handles design professional issues?

Wish you could find these answers in a reliable resource and know that it was solid information?

The lawyers have your back!  Check out the first ever 50‐State Survey of Licensed Design Professionals’ Stamping and Sealing Obligations (pdf; large document; give it some time to load)  by the American Bar Association Forum on Construction Law.

The survey is alphabetical, but for easy reference, here are some page numbers for the Southeastern States* to get you started:

  • North Carolina          starting at page 124
  • South Carolina          starting at page 154
  • Georgia                      starting at page 36
  • Florida                        starting at page 30
  • Virginia                       starting at page 176

Download or save this link, and the next time you have a quick question about the various licensing boards, regulations, rules, and procedures,  you can save yourself some time.

* FYI, my law firm has licensed attorneys in each of these Southeastern States, in case you should have further questions.

And, as always, drop me a line with any of your pesky construction law related questions, comments, complaints, etc.

Photo: (c) Coal town guy at English Wikipedia via CC

Insight into the AIA changes from an insider (law note)

Arlen SolochekAfter my series on the Top 10 Changes to the AIA 201, I heard from the Chair of the Task Group for the A201-2017, Arlen M. Solocheck.  Arlen is also both an architect and in-house owner’s representative at Maricopa Community Colleges, where he is the Associate Vice Chancellor for Capital Planning & Special Projects.

Arlen’s Task Force was responsible for the Herculean task of updating the A201 from the 2007 version, a process that took over 3 years.  He writes:

 

As chair of the Task Group that updated the AIA A201, I want to provide some additional thought to your AIA documents update, #10, Hidden Conditions. The objective of most notices, claims processes, etc. in the A201 is to keep the work proceeding while problems are resolved. Delays due to any reason harm both the contractor and owner. Once hidden conditions are discovered, the contractor is to notify the architect, who then is supposed to observe the conditions. The longer it takes to provide the notice, the more the hidden condition may be modified, impacted, or delay other work as that work progresses. We suggest that parties who are concerned about adverse impacts from shortening the notice period also note that no solution, no additional pricing, etc. is required with the notice. All that 3.7.4 requires is notice. A contractor should know pretty quickly if he’s seeing something that he didn’t expect. All that 3.7.4 requires is for him to say that.  

 

Arlen also notes that the process involved in making changes to the AIA documents is extensive:

I want people to understand that AIA and our task groups don’t make quick, willy-nilly decisions and changes, but they come from a lot of discussion, balance, reviews, feedback, etc. from the entire 30+ person document committee, AIA staff attorneys, and dozens of outside liaison reviewers we have who read every word and offer literally thousands of review comments on our drafts.

We can’t catch everything, even over 3 years of working on the document, so we enjoy and respect the outside comments and analysis, including those after publishing the updated version. If we goofed something up, it goes into the list to review for the next update.  I like to add some of the behind the scenes thinking so that even if someone doesn’t necessarily agree with the change we made, at least there’s an understanding of the reason behind it. 

In the particular comments made in the article, the comment seemed (to me) to overstate the risk due to and reasons for the change. Your caution in the article is reasonable for readers and clients, but I wanted to balance it with what the language really requires and effectively that it did not change a lot of the risk from the prior version.  The big picture is that there’s a reason for proper notice to be given on a project and lack of that notice puts a contractor or owner in a bad position should the claim later be lost or denied due to lack of Notice

 

Arlen also commented on the changes to the notice provisions

In A201-2007, there was capital N Notice, small n notice, “notify”, etc. not used consistently. We tried to clean that up with how when notice (small n) needs to be made, how notice (small n) can be made (including electronic/email if agreed upon), and that only Notices for a claim (capital N Notices) must be made in writing with proof of receipt possible.  We felt that this was the kind of Notice that was important enough to continue as formal, in writing, and proof of receipt. 

 

Thanks, Arlen, for your dedication to the design community, and for sharing your comments with us today.  I invite other readers to ask questions (for Arlen or me) in the comment section, below.   

 

 

Bonus Post: Other Notable Changes to the A201 Construction Contract (law note)

Bonus

Following our deep-dive into the newest A201 changes, and as promised in yesterday’s Insurance changes post, here are a few bonus changes to the General Conditions of the Contract:

  • If the Architect is terminated, the Owner must identify a successor Architect that the Contractor agrees with (Section 2.3.3)
  • The Contractor’s schedule is to include interim milestones and apportionment of the Work (Section 3.10.1)
  • The Contractor can rely on the accuracy of the design criteria in the Documents (Section 3.12.10.1)
  • Minor changes in the  Work- must be in writing; are deemed accepted at no cost unless Notice is given (Section 7.4)
  • The Owner may contact not only Subcontractors to determine payment, but also Suppliers (Section 9.6.4)
  • The Contractor indemnifies the Owner for lien claims, if paid in full (Section 9.6.8)

Do you have a question or comment about the A201, or the revisions to the A201?  If so, drop me a line below or through email.

Photo via AlphaStock images via Creative Commons license.