Claims Retrospective: What is a Claim under a Professional Liability Insurance Policy?
In Claims onRead moreSome insured engineers continue to express confusion regarding what a claim is under a professional liability insurance policy. Typically, the confusion is the result of one of two scenarios. Either the insured engineer does not understand the difference between a first party insurance policy and a third-party insurance policy, or the insured engineer mistakenly believes that a claim can never occur until a lawsuit or…
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Arbitration vs. Litigation
In Engineers onRead moreThe shutdowns and delays caused by the COVID-19 pandemic have significantly increased the backlogs in civil courts across the country, leading to an even longer period between when a case is filed and when it proceeds to trial. Given such delays, parties may be tempted to revisit binding arbitration as a quicker route to resolution than civil litigation. However, prior to determining whether to engage…
Claims Retrospective: The Importance of Considering the Effect of Your Work on Neighboring Properties
In Claims onRead moreWe have seen an increase in claims by neighboring property owners to lots with significant construction. The most common claim by neighboring property owners is that the construction has or will cause more water to accumulate on or flow through their property, resulting in ponding, erosion, and other soil movement. These claims are not only costly, but also can be difficult to resolve as the…
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.
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.
