Contract Provisions Requiring an Affidavit or Certificate of Merit Prior to Filing Suit – Enforceable or Not?
In Contracts onRead moreA minority of states have enacted statutes requiring that an affidavit or certificate of merit be filed in a lawsuit against a licensed professional as a threshold showing of merit. Originally prompted by public policy against frivolous medical malpractice claims, in certain states, such statutory protection is also afforded to licensed professionals outside the medical field, including engineers and architects.
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Claims Retrospective: The Threat to File a Licensing Complaint as a Claim or Potential Claim
In Claims onRead moreIt is not unusual for a client or others involved with a project to threaten to file a licensing proceeding when they are dissatisfied with the engineer’s services, especially if they feel the engineer has not been sufficiently responsive to their complaints. While most engineers recognize the gravity of such threats, as licensing complaints have the potential to lead to suspension or revocation of the…
Consequences of Bargaining Away the American Rule
In Engineers onRead moreMost jurisdictions follow what is called the American Rule, whereby successful parties are responsible for their own attorney’s fees in the absence of a statute or contractual agreement allowing for recovery of such fees.1 In practice, this rule supplies equal motivation for both parties to consider an early, economically efficient settlement, as both sides likely want to avoid incurring a lot of fees and costs…
Claims Retrospective: Engineers Who Have a Small Business Should Have a Contingency Plan in Place in the Event They Become Incapacitated or Die Unexpectedly
In Claims onRead moreWhile no one likes to think about their death or incapacitation, it is important that owners of small businesses set up a contingency plan in case of such an event to protect not only their businesses but also their loved ones. Many of the engineers insured through the ASCE program are small businesses, consisting of sole proprietors or an entity for which there is only…
Claims Retrospective: Engineers Should Address Both the Possibility and Existence of Unforeseen Conditions Directly and Immediately
In Claims onRead moreMost seasoned engineers have had the unfortunate experience of discovering an unforeseen condition that greatly affects the project after construction has already begun. These unforeseen conditions can include constituents of concern, structures, or materials that have been damaged by weather and/or wildlife, and erroneously constructed or outdated structures. Indeed, the late discovery of unforeseen conditions often causes engineers a great amount of stress—and for good…
Beware of Implied Warranties as the Assertion of Such Claims Can Lead to Expanded Liability
In Claims onRead moreWhile several jurisdictions only allow recovery of economic loss from design professionals, including engineers, in breach of contract,1 many jurisdictions allow alleged injured parties to recover under a negligence theory.2 In the jurisdictions limiting recovery to claims for breach of contract, only those parties in privity with the engineer can recover against the engineer, while in those jurisdictions that allow negligence claims against engineers, strangers…
Does a Design Professional Owe a Duty to Third Parties?
In Engineers onRead moreMost design professionals believe the client is the entity they have agreed to perform services for on a particular project. Indeed, it is hard to fault a design professional for holding this view, given the client ultimately sets the parameters for a project and is the party the design professional has contracted with.
Claims Retrospective: Problematic Clients Can Lead to Potential Claims
In Claims onRead moreOne way to avoid claims is to avoid bad, or problematic, clients. Before entering a contract for services, engineers should always take time to adequately vet clients.
What Does an Engineer’s Stamp or Seal Really Mean?
In Engineers onRead moreIf a group of engineers were polled regarding what it means to stamp or seal plans and drawings, the common response would hopefully be the same—the engineer stamping or signing the plans and drawings is in responsible charge of and/or has direct supervision over the work contained in those plans and drawings.
Claims Retrospective: Remember, Your Subconsultant’s Work Is Your Work
In Claims onRead moreEngineers frequently subcontract a portion of the design work they are responsible for to a subconsultant. However, engineers should realize they will remain responsible to their client for their subconsultant’s work product. In other words, if their subconsultant’s work is defective or fails to meet the applicable standard of care, the engineer will be liable to the client.
