On Tuesday, October 10, 2023, partner Keith J. Stevens and associate Poonam Pelia co-presented their original seminar entitled, “Legal Pitfalls Associated with Written Communications”, before members of the Structural Engineering and Mechanical, Engineering and Plumbing Groups, of WSP USA Inc., one of the world’s leading engineering and professional services firms.
Mr. Stevens and Ms. Pelia, attorneys in L'Abbate, Balkan's Design Professionals Practice Group, were honored to be invited to WSP’s New York City headquarters, to present their seminar in real time to the on-site attendees, while simultaneously having their presentation broadcast as a virtual webinar. This allowed WSP structural and MEP engineers both inside and outside of the New York office to view and participate in this informative session geared specifically toward their professional fields.
This presentation was designed to assist professional engineers with mitigating risk/potential liability resulting from non-technical errors and omissions associated with improper, non-existent, overly broad and/or overly narrow communications concerning contracts, drawings, municipal forms, letters, emails, and text messages. Over 50% of claims brought against professional engineers originate from miscommunications or misunderstandings, rather than “technical” errors or omissions.
Mr. Stevens and Ms. Pelia addressed how engineers in today’s litigious society are vulnerable to lawsuits resulting from seemingly innocuous written communications (or lack thereof). While not all litigation may be avoided, this session provided attendees with the tools required to reduce the likelihood of claims resulting from non-technical errors and/or omissions.
Through the discussion of actual case studies, hypotheticals, and the controlling law, engineers who attended are in a better position to confidently navigate the day-to-day nuances of their profession, knowing they are taking a proactive approach toward limiting their exposure associated with miscommunications and misunderstandings.
The engineering field is ever-changing. It is important to understand the legal climate in which you practice to better serve your clients and your firm. Whether you are a seasoned engineer, just starting out, or somewhere in between, this informative seminar was offered to provide engineers a working knowledge of how to protect themselves against unnecessary litigation.
A synopsis of this presentation can be found below. Please contact the firm administrator if interested in having L'Abbate, Balkan, Colavita & Contini, LLP attorneys present this seminar in its entirety, or other practice group seminars, to your organization.
"LEGAL PITFALLS ASSOCIATED WITH WRITTEN COMMUNICATIONS"
Presented by Keith J. Stevens and Poonam Pelia
October 10, 2023
Technical v. Non-Technical Errors and Omissions
Technical errors and omissions include such things as:
(1) failing to properly design a project in accordance with the project requirements, the relevant Building Code and/or good and accepted architectural/engineering practice; and/or
(2) failing to determine that contractors’ work in deviation of plans and specifications.
Non-technical errors and omissions, which we will discuss today, result from a breakdown in project or practice management processes, time constraints and/or a lack of patience.
The majority of claims (over 50%) that we come across in representing design professionals arise from non-technical issues.
Importance Of Clearly Defining Contractual Scope of Responsibilities
Clearly Defining Scope of Services
Every party involved in a project should clearly describe its intended scope of work in writing to avoid confusion.
Many design professionals prefer AIA agreements which clearly delineate the responsibilities of each entity. There are pros and cons of relying on these types of agreements.
The Engineers Joint Contract Documents Committee (EJCDC) created its own version of preferred contracts. The EJCDC is a joint venture of the American Council of Engineering Companies, the National Society of Professional Engineers, and the Construction Institute of the American Society of Civil Engineers.
EJCDC documents reduce the potential for errors, omissions, redundancies, and conflicts. The documents provide for industry-accepted distribution of risk among project participants. In addition, EJCDC documents are generally less expensive than AIA documents.
The EJCDC offers a variety of contracts collectively intended to suit every type of project. The EJCDC publishes versions of Owner Engineer, Design-Build, Engineer Subconsultant and Construction Agreements.
General Conditions Contractual Provisions
Sometimes it is not feasible to enter into an AIA or EJCDC agreement. The potential client may have concerns about the formality of the agreement and/or may prefer to use its own form for the agreement.
When an AIA or EJCDC agreement is not used, the design professional must take extra precautions to ensure that the contract is clear in delineating each party’s scope of work. An effective way to avoid confusion is to separately list the specific services which are not included in the design professional’s scope of work.
For example, the protection of adjacent structures may be excluded from the scope of work of a structural engineer retained to design the foundation and superstructure of a new building. Another example is that a structural engineer may specifically indicate that wind and snow loads are to be calculated by others.
Design Drawings and Building Department Forms
Make sure that drawings and Building Department Forms match intended services. Use comprehensive general notes which clearly define roles of each party involved in the implementation of the design. Try to avoid “typical details”.
General Notes
All underpinning & related work shall be designed by a professional engineer employed by contractor. The contractor's engineer shall be responsible for inspection of this work.
Before submitting a shop drawing or any related material to the engineer, contractor shall: review each submission for conformance with the means, methods, techniques, sequences and operations of construction, and safety precautions and programs incidental thereto, including reflection of existing field conditions, all of which are the sole responsibility of contractor.
Special Inspections
The TR-1 creates issues which potentially impute liability on the engineer for issues which impact the health, safety, and welfare of the public. Item Number 5 requires the design applicant to: (1) identify all of the required special inspections, progress inspections and tests required for compliance; and (2) certify that the Special Inspector and Approved Agencies engaged by the owner to supervise the inspections are acceptable.
Example Number 2
In executing Item No. 5 of the TR-1, an engineer retained to provide the necessary structural services relative to the restoration of a building identified concrete as one of the special inspections and certified that the inspection agency engaged by the owner was acceptable. Towards the end of the project, various defects arose with respect to the building. Upon investigation, it was learned that some of these defects resulted from the contractor’s deviations from the engineer’s design in failing to install steel rebar reinforcement in the structural masonry and fill the masonry with high strength grout. Accordingly, the building was not safe.
Notably, the inspection agency certified by the engineer as acceptable fraudulently executed the TR-1 indicating that it conducted the required controlled inspections of the concrete. While the engineer was not responsible for conducting the inspections, this situation could have been avoided had the engineer conducted a thorough background check on the inspection agency.
Site Inspection Reports
Example Number 3
An electrical engineer is retained by a municipality to make sure that a public pool is properly bonded and grounded in accordance with the National Electric Code. The engineer was not retained to test for stray voltage or otherwise inspect the electrical system. In inspecting and testing the pool in accordance with the agreed upon procedure, the engineer confirmed that the pool was, in fact, properly bonded and grounded. In reporting the results of its testing, the engineer made a blanket statement that the pool was safe for public use. While the parties involved in the project were aware of the engineer’s scope of services, the engineer’s report did not clearly qualify his statement about the pool’s safety.
Accordingly, both the municipality and the entity who operated the pool opened the pool to the public without conducting the necessary inspections and testing. Shortly thereafter, a lifeguard was injured when she stepped on a metal junction box plate while simultaneously grabbing the adjacent metal handrail.
Emails and Text Messages
Email has become the most common form of communication in the design and construction industry. Professional liability claims often arise from emails that are careless, lazy or contain admissions of fault. Emails and text messages generated on portable devices such as cell phones and iPads are subject to the same standards as all other content.
Federal and State Court rules grant litigants very broad access to documents and electronically stored information maintained by other parties as long as they relate to the subject project.
Common Circumstances That Result In Problematic Written Communications
Recommended Policies
Every email and text message is a representation of the firm and must be professionally written and suitable for publication to anyone having an interest in the project. Internal concerns and criticism should not be communicated in writing.
All communications intended to be confidential should be addressed to the company’s attorney since communications with the company’s attorney are generally protected and immune from discovery.
Do not delete “bad emails” after you become aware of a potential claim because parties have a legal duty to maintain all project related documentation after they become aware of the claim and the problem emails could be located through forensic measures.
Best Practices
All rights reserved by authors Keith J. Stevens and Poonam Pelia