Tag Archives: architect

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.

Lien Law Changes: Bad for Designers?

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UPDATE:  Designers may file Notices of Commencement when they start their work, which should eliminate or significantly reduce the priority date concerns expressed below.  See this post for more details.  — mdb  3/4/11

gavel, law books, & hard hat

The work of the NC Bar Association’s Construction Section Lien Law committee continues, and it may drastically change the lien law landscape for architects and engineers.

On February 18, the Construction Law Section Council, the governing body of the Section, voted 11-4 to accept the latest draft version which must still be approved by the NC Bar Board of Governors.  After approval by the Board, it will then need sponsorship at the General Assembly.   The lien law changes have divided the construction industry – some believe the changes are beneficial, while others worry about new requirements contained within the bill.

Of particular note for architects and engineers, the new lien law envisions a new Notice of Commencement which would then act as the first date of service for everybody who works on the project.  The new law would give almost everyone on a project the same priority date.  Almost all liens would then relate to and take effect as of the Notice of Commencement date.

In other words, designers and others who perform work very early in the project would have no stronger lien rights than those who perform work at the very end of the project.  If there are insufficient funds to satisfy all of the liens, the net result is that architects and engineers will have to share pro rata will all contractors and subcontractors from the owner’s assets.   (And, to answer a question posed to me the other day, yes, architects and engineers have lien rights on projects in North Carolina!)

Is there a way around this for designers and other early performers? Yes and no.  One way a designer can protect his priority is by filing a Claim of Lien before the Owner files the Notice of Commencement.  (See section 44A-10 of the new draft bill).  However, as you can imagine, filing a Claim of Lien before construction has even started is likely to be frowned upon by the Owner.  Furthermore, the lien would have to be timely perfected, which involves actually suing the Owner.  Obviously, use of the Claim of Lien to beat the proposed Notice of Commencement date will have limited, if any, practical use for construction professionals who are working on a project and want to maintain a good relationship with the Owner.

There are many good things in the new bill: a way to streamline payment issues to ensure subcontractors are timely paid when the general contractor is paid, for example, as well as an attempt to provide lien rights to parties even after a bankruptcy filing, which had been made impossible by recent cases.   However, the priority issue is definitely bad for designers, as well as others who do their work very early in the project.

Comments, questions, or thoughts about the proposed changes?  Let me know in the comment section, below.  And sign up for regular email updates from this Blog, so you never miss a post.

Can a designer limit his liability to his fees for service?

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Architects and engineers (and the owners/contractors with whom they contract) often wonder whether limiting liability language is enforceable.  The answer, as in much of construction law, is very much dependent on what state’s court will be interpreting the contract.  Some states allow such limiting language, and others do not.  Josh Glazov’s Construction Law Today blog recently tackled the enforceability of such provisions in the context of a recent Illinois case, in which the Illinois court found such limitations perfectly acceptable, so long as they (1) are not “unconscionable” and (2) do not violate public policy.

sign: proceed at own risk
 

North Carolina takes a very similar approach to such limitations of liability.  Here, so long as the limitation of liability is not also an agreement to be liable for the other party’s negligence (which is barred as against public policy), such a limitation of liability is enforceable.  A case discussing this issue from the engineering perspective is Blaylock Grading Co., LLP v. Smith et al, 189 N.C. App. 508, 658 S.E.2d 680 (2008).  In that case, a surveying engineer limited his liability, via contract, to $50,000.  The Court, citing an earlier state Supreme Court decision, ruled that the limitation was valid and enforceable:

People should be entitled to contract on their own terms without the indulgence of paternalism by courts in the alleviation of one side or another from the effects of a bad bargain.  Also, they should be permitted to enter into contracts that actually may be unreasonable or which may lead to hardship on one side.  It is only where it turns out that one side or the other is to be penalized by the enforcement of the terms of a contract so unconscionable that no decent, fairminded person would view the ensuing result without being possessed of a profound sense of injustice, that equity will deny the use of its good offices in the enforcement of such unconscionability.  Id. at 511, 658 S.E.2d at 682.

Is this rule absolute?  Clearly not, as the above quote indicates.  Unconscionable limitations will not be enforced.  Moreover, a third party, not subject to the contractual terms, is free to sue in negligence.  But as between the contracting parties, such a limitation on damages can be a powerful tool to minimize exposure to risk.

Questions about limitations on liability?  Comment below or drop me a line.  And be sure to sign up for email delivery of blog posts directly to your inbox.

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Photo:  “Proceed at own risk” by Dave Nicoll via Flickr/Creative Commons license