Professional Liability: Study and Report Risk Management
In providing services such as studies of existing facilities, project proposal evaluations, or site assessments, a limitation of liability provision may be advisable. However, with or without a limitation of risk commensurate with the cost of the service being provided, careful language in the scope of services and in any study or report is vital. While we do not have a large database of claims from clients or third parties caused by detrimental reliance on environmental site assessment services, project feasibility studies, or pre-purchase evaluations, it is clear that if design professionals do not communicate with their clients, unrealistic expectations or improper use of the information generated by the design professional may result in claims.
When providing studies and reports, it would therefore seem critical that the design professional's agreement and services accomplish the following:
· The scope of services and the limitation of use of the instruments of that service are clearly identified in the agreement and the report.
· The client and anyone referring to the report are made aware that unless a service is expressly included in the scope, it was not performed, and therefore there should be no assumptions based on services that were not provided.
· The report is identified as a statement of professional opinion based on the information available during the assessment or evaluation and formed by the judgment of the design professional from the knowledge of available facts and other identified information.
· The services and the report are acknowledged as only reflecting conditions at a specific point in time that is clearly identified in the report, and the understanding that conditions can change is communicated.
· Any third party referring to the report is made aware that it can only rely on the information in the report in the same way that the client has the ability to rely on the opinion of the design professional.
· There is a clear disclaimer of any perceived warranties or guarantees and a statement that the report was prepared subject to the standard of care applicable to such professional services.
© 2009, Victor O. Schinnerer & Company, Inc. Statements concerning legal matters should be understood to be general observations based solely on our experience as risk consultants and may not be relied upon as legal advice, which we are not authorized to provide. All such matters should be reviewed with a qualified advisor. Victor O. Schinnerer & Company Inc. is managing underwriter for the CNA/Schinnerer Professional Liability Insurance Program, commended by NSPE/PEPP since 1957.
NSPE Fall 2009 Web Seminars Offer PHD Credits
NSPE's fall Web seminars offer a wide variety of topics from ethics to social media to GNSS systems. Earn one PDH for each of the sessions while sitting at your desk or in your conference room. The member price is $119 for each session. The price is per site, you can get together with others in your office or chapter to participate.
Free! November 4, 12:30–1:30 p.m. (E.S.T.), Qualifications-Based Selection: Under Attack
Speakers: Dan Tanksley, JD, P.E.; Christopher Stone, P.E., F.NSPE; William Fendley, P.E., F.NSPE
Description: Have you ever wondered what qualifications-based selection was really all about? Our panel of experts will explain QBS without the jargon, discuss its value to you and your clients, and tell you about how QBS is being threatened right now by legislative and regulatory actions at the state and federal levels and how you can help.
November 11, 12:30–1:30 p.m. (E.S.T.), Ethics Forum Part III: Conflicts of Interest and the Ethics of Gifts
Speaker: Arthur Schwartz
November 17, 12:30–1:30 p.m. (E.S.T.), Forensic Engineering (Co-Sponsored by National Academy of Forensic Engineers)
Moderator: Marvin Specter, P.E., LS, F.NSPE, Hon M.ASCE
Panel: Michael Kravitz, P.E.; Michael D. Leshner, P.E.; W. T. (Dusty) Yaxley, P.E., CSP
Description: This session, based on real life cases, will highlight three different situations in which engineers are required. In addition, each of the cases involves a different level of penetration of the legal system.
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Recently Overheard in HR
Attendees of the PEPP—sponsored HR Directors Roundtable have year-long access to fellow participants on a group Listserv.
A recent question asked on the Listserv was
"HR Colleagues :
With the tight budgets we are wondering what you are doing for expenses related to paying for PE licenses and prep courses, etc.
Also how are you handling professional journals and membership fees?
Does your firm reimburse for maintaining these professional perks? Do you pay a portion or all? Have you had to change your policy or structure since the financial crash?
Thanks for your help!"
Out of 25 responses, all firms still paid for PE registrations, a few restricted it to one state or only states where they needed work done, and many also paid for the test and prep courses to obtain PE at least once. Most are continuing to pay for at least one membership and publication. Most are still paying PE bonuses. A few of the responses are below:
"I don’t see us cutting these though unless we absolutely have no choice. The market for good engineers with previous experience is still quite tight."
"We pay 100% for all and have not restructured this agreement and probably won't. We value the certifications which are critical to what we do."
"We continue to pay for these things. They are essential for our employees to remain connected in the industry so they are poised when recovery happens. As for the PE, we pay for the cost of the exam after it is passed, we pay for one review course and we pay for the time if the exam is held during the work week."
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Recently on NSPE's PE Licensure Blog
At the annual meeting of the National Council of Examiners for Engineering and Surveying in August, Ed Huston, P.E., a structural engineer from Washington, made an interesting presentation regarding professional issues with respect to transfer of responsible charge. Below is a brief summary of the issue:
There are a number of circumstances where responsible charge needs to be transferred from one professional engineer to another. These circumstances might include the disability, death, or discharge of a PE during design or after a design is completed, or the adaptation of a standardized design to specific local project requirements. In these and other circumstances, a new PE (a "successor licensee") needs to pick up the design, confirm it, complete it, and assume responsible charge. The review process needs to be thorough. If the review process is cursory, this can be inappropriate plan-stamping.
The NCEES Model Rules regarding transfer of responsible charge are clear and well-crafted (see Section 240.20 "Seals," C7). The rules require that the successor licensee develop a complete design file with all criteria, calculations, code requirements, and changes to the work developed and/or confirmed. The drafting need not be redone, but the documents must clearly reflect the successor licensee's work.
Of the engineering jurisdictions in the U.S., 13 have state rules that mirror the Model Rule language, or strengthen it. Others have language that's either less clear or less thorough, and 11 jurisdictions appear to have no language that allows for the transfer of responsible charge.
PEs who are in a situation requiring transfer of responsible charge should be mindful of both the PE licensing board rules of the jurisdiction in which the project is located and the appropriate procedures for assuming responsible charge as outlined in the Model Rules. In states where the language is weaker or absent, NSPE state societies might consider advocating with their state PE board for the adoption of these Model Rule requirements. Other engineering societies may be interested in collaborating with NSPE state societies in this advocacy. This is an important issue with respect to protecting public health, safety, and welfare, and ensuring that the successor engineer has sufficient scope to be able to assume responsible charge appropriately.
Posted by Craig Musselman, P.E., F.NSPE
Filed under: NCEES, Model Rules, responsible charge
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New Ethics and Compliance Rules for Contractors
The government has adopted major changes to rules governing contractor ethics and compliance programs, which modify parts of the Federal Acquisition Regulations. These new rules went into effect on December 12, 2008, and contain the most significant changes in the regulatory landscape for contractors in several years. This seminar provides a brief overview of the changes and guidance on how contractors can adopt training programs and gain a competitive business advantage.
To take part in the seminar visit ShopNSPE.
Product Code: ONL-064
Year Published: 2009
Format: Online course
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Wisconsin Becomes First State To Require BIM on Public Projects
On July 1, Wisconsin became the first state to require the use of building information modeling software on most public projects, a move that could trigger 3D modeling requirements across the country.
The new regulations call for architects and structural engineers to use BIM authoring software and engineers in other disciplines to use authoring software or discipline-specific 3D modeling programs. The software is required on all projects totaling more than $5 million in cost and new construction projects totaling $2.5 million in cost, but is encouraged on all projects.
Wisconsin tested the requirements starting in 2008 on a pilot program of 13 construction projects totaling $300 million. The Wisconsin Division of State Facilities, which authored and issued the requirements, was sufficiently convinced that the regulations could be applied to all large public projects and made the standards official on June 25 of this year.
On August 12, the Texas Facilities Commission announced it will adopt BIM requirements, with hopes to become the first state to require the software on all public projects. For now, Texas will require BIM on projects of a certain cost, similar to Wisconsin. Texas officials have not announced when the BIM requirements will take effect, or to what types of projects they will apply.
For the full article, read the September 2009 issue of PE magazine.
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