Professional Liability

RISK MANAGEMENT LIBRARY

Webinar Library
Yours, Mine, Ours...Who's Responsible for the Design?

By Barbara Sable - RLI Corporation - Download Article pdf

In this webinar, Barbara Sable will elaborate on information addressed in a previous webinar provided by RLI Corporation which discussed the sophistication of modern building envelopes and systems, and new project delivery systems, and how they have increased the number of contributors to a project’s design and created a complex web of relationships among them.

In this course, we will help you to identify and manage (by avoidance or control) the risks created by numerous developments of modern design.
Participants in this course will learn:
• Common Scenarios of Delegated and Shared Design Responsibility
• Concerns Raised by Delegated/Shared Design Responsibility
• Principal Factors Determining Responsibility (and Liability) for Design
• Alternative Sources of Project Design
CLICK HERE TO VIEW RECORDING

Understanding Claim Exposures and Contractual Risk Transfer

By William S. Thomas - Pitzer Snodgrass, PC - Download Article pdf

This webinar, presented by William Thomas of Pitzer Snodgrass, PC will discuss the value of a well written contracts. The purpose of this session is to aid design professionals in understanding and appreciating that every word in their agreements potentially creates risks and liabilities. Bill will suggest effective strategies to transfer these liabilities to the parties who should more appropriately bear them.

Four learning objectives attendees will receive from our presentation:
1. Clearer understanding of potential risks and exposures to everyone in the construction process;
2. Appreciation of unexpected and unintended consequences of contract language;
3. Tools to identify and limit contractual risk exposures;
4. Mechanisms for shifting risk through contract provisions to the appropriate parties.
CLICK HERE TO VIEW RECORDING

Claim Disputes: The Case of the Cracked Apron

By John Lowe - Lowe Consulting LLC - Download Article pdf

In this webinar, John Lowe of Lowe Consulting, LLC addresses the design and construction of concrete flatwork that cracked badly shortly after being placed. This case study provides the nature and severity of the cracking, the analysis of what caused the cracking, the procedure used to develop the remedial action to deal with the cracked concrete, and the process used to manage the contractor’s claim. Examples of lessons learned are presented in the presentation.
This webinar will provide the following learning objectives:

1. Learn how to design and specify concrete flat work to minimize uncontrolled cracking
2. Learn how to identify construction practices that contribute to uncontrolled concrete cracking
3. Learn the benefit of having a solid client/consultant relationship when construction problems occur
4. Learn how to manage solving contractor caused construction problems
CLICK HERE TO VIEW RECORDING

From Shop Drawings to Contract Validity: Every Day Risks facing Design Professionals

By Steve Goldstein - Shaub, Ahmuty, Citrin & Spratt LLP - Download Article pdf

In this webinar, Steve Goldstein of Shaub, Ahmuty, Citrin & Spratt LLP will discuss some of the routine interactions for design professionals and their potential risk exposures. Walk through the process of reviewing shop drawings, leaving projects before completing services, returning to a project after completing services and whether or not you have a valid contract. At the end of this webinar participants will be able to:
1. Understand the importance of shop drawings in the design professional’s practice;
2. Understand the steps to protect against potential litigation when design professionals leave projects before completing services;
3. Know what to consider when design professionals return to a project after completing their services;
4. Know how to ensure the existence of a valid contract.
CLICK HERE TO VIEW THIS RECORDING

The Impact of Onerous Provisions

By Colleen Palmer - Beazley Group - Download Article pdf

This event, presented by Colleen Palmer, Risk Manager of Beazley Group discussed the following learning objectives:
ľ 1. Identify important contract provisions that are frequently the subject of difficult negotiations;
ľ 2. Consider the dangers associated with poorly worded, client-proposed contract provisions;
ľ 3. Learn about the potential advantages associated with favorably-drafted provisions; and
ľ 4. Discuss valuable strategies and techniques when negotiating design services agreements with challenging clients
CLICK HERE TO VIEW RECORDING

Negotiating the Professional Services Contract

By Tom Owens - Owens Legal Practice, PLLC - Download Article pdf

This webinar was presented by Tom Owens of Owens Legal Practice, PLLC. This presentation will provide you with the following:
1. Prepare design professionals to negotiate a professional services contract (client and consultant) understanding the strengths and weaknesses from the design professional’s position.
2. Provide design professionals with the critical terms each contract should include.
3. Inform the design professional about typical contract language that is detrimental.
4. Help the design professional understand where the most significant contract errors are made.
CLICK HERE TO VIEW RECORDING

Contractual Codes of Conduct and The Effect on Your Professional Liability

By Bruce Demeter - OneBeacon Professional Insurance - Download Article pdf

This event, presented by Bruce Demeter, Vice President of One Beacon Professional Insurance discussed the following learning objectives:
1. To provide participants with information regarding ethical and Code of Conduct requirements that are arising in public works agreements and laws; project delivery methods such as P3; and project design modeling such as BIM.

2. To provide the participants with information on how contractual ethic and Code of Conduct requirements may affect the professional standard of care and professional liability insurance coverage.

3. To provide participants with the knowledge to address and minimize the risk exposure of contractual ethics and Codes of Contact may represent.

4. To provide participants with the knowledge necessary to develop and maintain a contractually required Code of Conduct and ethics.
CLICK HERE TO VIEW RECORDING

To Infinity and Beyond! Avoiding and Managing Cyber Liability in the 21st Century

By Dan Weedin - Toro Consulting, Inc. - Download Article pdf

This topic was presented on Tuesday, October, 2012 by Dan Weedin of Toro Consulting, Inc.
At the end of this presentation, participants will understand the following learning objectives:
1) Gain an understanding of the dangers that cyber liability pose to architects and engineering firms;
2) To identify the most common cyber perils;
3) To create a simple, painless approach to managing the risk ; and
4) To develop a communications plan for all key stakeholders
CLICK HERE TO VIEW RECORDING

Managing Professional Fees

By David Eckberg - Skellenger Bender , Kara Masters - Skellenger Bender - Download Article pdf

This event presented on Tuesday, August 21, 2012 by David Eckberg and Kara Masters, Partners at Skellenger Bender Attorneys at Law discussed the following effective strategies for getting paid including:

1) Use of specific contract clauses (such as advance payment, incentives for fast pay, and penalties for slow pay) and understanding and avoiding pay when (if) paid clauses; and
2) Understanding and capitalizing on public contract protections including fast pay regulations and Miller Act payment bonds; and
3) Understanding and capitalizing on lien laws which are form and time sensitive and differ from state to state; and
4) Proactively avoiding or minimizing professional negligence claims that often follow a demand for payment.

David Eckberg focuses his practice in the areas of corporate affairs and commercial transactions, environmental law, employment law, construction law, real estate law, and general counseling and representation of design and construction firms doing business in the environmental industry. He also represents owners and operators on transactional matters, environmental disputes, and compliance matters. His practice also includes advising health care professionals on business law matters.

Kara Masters practices civil litigation and appeals in the areas of design professional defense, construction law, insurance coverage and defense, environmental law, employment law, and general civil litigation.

CLICK HERE TO VIEW RECORDING

Applying the Art of War to the Design Professional: Understanding Litigation and Your Enemy Will Sharpen Your Practice

By John D. Broghammer - Greve, Clifford, Wengel & Paras, LLP - Download Article pdf

This webinar, presented by John Broghammer, Esquire of Greve, Clifford, Wengel & Paras, LLP discusses the following topics:

• Understand the importance of risk management and how it effects overall A/E practice management;
• Understand the use of insurance in litigation;
• Understand how documentation can be a useful weapon;
• Understand how your risk management practices can impact service to clients.

CLICK HERE TO VIEW RECORDING

Lessons Learned: Practical Advice on how to Avoid Professional Insurance Claims and Manage PLI Exposures

By Mike Hall - Hall & Company - Download Article pdf

Presented by our own President Mike Hall of Hall & Company, this presentation will highlight the most challenging insurance claims and our approach to evaluating, negotiating, and managing those claims for our clients. Specifically this webinar will provide:
1. An overview of some of the largets professional liability insurance claims we have seen the past 20+ years
2. A review on how these claims could have been avoided
3. A review on how these claims could have been better insured
And finally, a discussion on how these claims could have been better managed.
Click here to view recording

Limitations of Liability and Economic Loss Doctrine

By David Eckberg - Skellenger Bender - Download Article pdf

Presented by David Eckberg of Skellenger Bender Attorneys at Law, at the end of this presentation, you as an attendee should understand:
• How the law treats economic losses (such as construction delays and lost profits) that may be caused by a design professional's errors or omissions; Why contracts can impact your indemnity obligations
• What a limitations of liability clause is and how it can be an effective risk management tool;
• With the understandings in 1) and 2) above, you will then learn the importance of different insurance coverages; and
• How to properly draft and negotiate contract clauses to account for economic loss and enhance the enforceability of limitation of liability clauses.
Click here to view recording

Contract Negotiations for A/E Professionals

By John Broghammer, Esquire - Greve, Clifford, Wengel & Paras, LLP - Download Article pdf

This event, presented by John Broghammer, Esquire of Greve, Clifford, Wengel & Paras, LLP will discuss the following topics:
• Understand the importance of the overall A/E contract;
• Understand why contracts can impact your indemnity obligations;
• Understand how your contract can affect the standard of care and increase risk;
• Understand how your scope of work and mundane contract clauses can impact the A/E bottom line.
Click here to view recording

Legally Green: The Legal Environment for Design Professionals in a Greening World

By Mark Schultz, Esquire - Henderson, Franklin, Starnes & Holt, PA - Download Article pdf

This event, presented by Mark Schultz, Esquire of Henderson, Franklin, Starnes & Holt, P.A. will discuss the following topics:
• The legal expectations for design professionals if advertising services as LEED credentialed
• Negligence standards to protect design professionals and how to maintain those standards in contracts
• Why guaranteeing a LEED certification for a building should be avoided
• Obtaining a client’s informed consent when using new green products that may not have a proven performance record
Click here to view recording

Underground Construction Claims: Avoidance, Mitigation, and Management

By Dr. Conrad W. Felice, Ph.D, PE, D.GE - C. W. Felice LLC - Download Article pdf

This event, presented by Dr. Conrad W. Felice, Ph.D., P.E., P.Eng., D. GE. of C. W. Felice LLC will discuss the following:
• Review of underground engineering and construction
• Understanding risk in underground projects
• Practices for managing risk and avoiding and mitigating claims
• Future and direction of the use of underground space
VIEW RECORDING

The Bright Gray Line

By David Ericksen - Severson & Werson - Download Article pdf

Presented by David Ericksen, President of Severson & Werson, this presentation will highlight the most challenging contract clauses and our approach to evaluating, negotiating, and managing those clauses for successful projects. Specifically, we will apply our time-tested negotiation and management model to some of the most challenging clauses such as indemnity, the standard of care, code compliance, document ownership, and others. Click here to view recording

Claims Against Design Professionals for On-site Injuries

By Terry Scanlan - Skellenger Bender Attorneys at Law - Download Article pdf

This event, presented by Terence J. Scanlan of Skellenger Bender Attorneys at Law. Terry will discuss the following topics:

• Duties imposed by local and federal law on Design Professionals
• Case history examples of duties assumed by conduct during design, construction administration and observation
• Design Professional immunity from claims by injured workers
• Contracting issues regarding assumption of duty
• And more…
Click here to view recording

A Design Professional's Law Clinic

By Michael Corso - Henderson, Franklin, Starnes & Holt, PA - Download Article pdf

This event was presented by Michael Corso, Esquire of Henderson, Franklin, Starnes & Holt, P.A. and discussed the following topics:

Statutes of Limitations and of Repose
Tort and Contract Law
Determination of Negligence and Liability
Contract and Strategic Considerations
Project documents and Administration
And more...
Click on this link to view recording

Fundamentals in Contracting and Professional Liability

By John Lowe, PE - Lowe Consulting LLC - Download Article pdf

This event was presented by John M. Lowe of Lowe Consulting, LLC and discussed the following topics:

The Philosophy of Contracting
Contracting for Professionals Services
Project Delivery Methods
Professional Liability
And more...
Click here to view recording


Certificate of Merit
Certificate of Merit

By Gary Vinson - Greve Clifford Wengel & Paras - Download Article pdf

This article gives a general overview of the Certificate of Merit Law and how it is applied. Below is a quote from this article:

Many design professionals, and some of the attorneys who defend them, believe the Certificate of Merit law has often been circumvented or ignored and ask what rights they have if plaintiff's counsel fails to comply.

Before the attorney can sign the Certificate of Merit, s/he must review the facts of the case with one design professional, licensed and practicing the same discipline as the defendant, and receive an opinion that the defendant was negligent in the performance of professional services. When that consultant's opinion has been received, the attorney may declare, under penalty of perjury, that s/he has concluded there is reasonable and meritorious cause to file a lawsuit. Curiously, the statute does not require the consultant's opinion to be in writing.

The Certificate of Merit statute provides the identity of the consultant is privileged information which is protected from disclosure. There is, however, one exception. The exception applies if the case goes to trial and the design professional wins. Upon winning, s/he may move the court to verify that plaintiff's attorney complied with the law about the Certificate of Merit. The trial Judge may then require the disclosure of the name, address
and telephone number of the design professional who was consulted. The disclosure, however, is to the Judge only. The attorney for the defendant is not given the information.


Claims
2012 - Collections-Claims Connections: Getting Paid without Getting Sued

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

The Collections-Claim Connection: Getting Paid without Getting Sued. Below is a quote from this article:

Experience shows that many firms fall behind in their collection efforts and accrue large, overdue receivables because they find discussions of such issues with clients to be awkward, uncomfortable, and even “unprofessional”. In reality, it should be seen as unprofessional to not address the issues. There are professional ways to pursue such issues without their becoming a point of conflict with a client. If they do become a point of conflict, it is better to know sooner rather than later.

A good collection procedure will typically follow a rational path of escalation. Such a Procedure may include some or all of the following:

1. Even if a payment is not technically “due”, consider sending a reminder notice. For example, if an invoice has a thirty (30)-day payment period, it may go to the bottom of the pile. A reminder fifteen (15) days before the due date will often move the invoice back to the top of the pile.

2. If a payment is not received by the due date, a prompt written reminder should be sent. It should be succinct, courteous, and professional.

3. If payment is not received within a short time of the reminder letter (e.g. 10-15 days), it is time for a personal contact. It may be in person or by telephone. Avoid asking questions such as: “Is there a problem?” Rather, ask: “Is there a reason we did not receive payment on time?” this is less likely to suggest vulnerability. Confirm the conversation, any explanation, and the commitment to pay in writing. The explanation and the commitment may often be useful in a later collection effort and to defeat any differing excuses offered later. Even if no explanation is offered and no commitment made, the conversation should be documented for later use in establishing notice and the lack of criticism.

4. No later than thirty (30) days after a payment becomes overdue, all strategic options and requirements should be considered. This would include contractual options such as suspension of services, enforcement of guaranties, and notifications to owners and lenders. It would be also include statutory remedies, such as lien notices and stop notices. Again, none of these measures is unprofessional, but are simply tools to be used to keep a project on track.


Contracts
16 Contract Provisions You Need to Know

By David Ericksen - Severson & Werson - Download Article pdf

In the AEC community, contractual agreements provide the structure and road map for successful, profitable projects.
It is amazing, however, that project participants are often unaware of the actual contract terms. Only by familiarity with, and frequent reference to, the actual contractual obligations can team members deliver the required contract services without voluntarily providing more or inadvertently providing less.

While each contract should be created based on the unique demands of each project, there are some key contractual issues that apply to virtually any engineering service agreement. Every engineer should be familiar with them.

7 Key Provisions to Prime Design Agreements

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

CO - Ct Bars Limitation of Liability

By Justin Jagher, Esq. - Donovan Hatem, LLP - Download Article pdf

Colorado Court Bars Limitation of Liability Provisions for Design Professionals.

Contract Review for Design Professionals

By Tom Owens - Tom Owens Consulting LLC - Download Article pdf

Tom Owens Consulting will provide contract review services for the core risk elements of design professionals services contracts for architects, engineers and environmental consultants.

Do You Really Have a Contract?

By Steven R. Goldstein, Esq. - Shaub, Ahmuty, Citrin & Spratt, LLP - Download Article pdf

Despite the best drafted agreements, if the very existence of the document is called into question, such an agreement may ultimately prove useless. Specifically, in many instances an owner or contractor with whom a design professional claims it had a valid, binding contract will claim that no such agreement ever existed and as such, the terms and conditions of the purported agreement cannot be enforced against them.

Getting Paid - Are Promissory Notes Another Empty Promise?

By Robert H. Stellwagen, Esq. - Collins Collins Muir + Stewart LLP - Download Article pdf

This article provides a description of a promissory note, it's effect, and the best practices for a design professional to get paid.

IL - Court Expands Engineer's Duty of Care

By Lynn M. Squillace, Esq. - Donovan Hatem, LLP - Download Article pdf

Illinois Court Expands Engineer's Duty of Care Beyond the Terms of the Applicable Contract.

Importance of Contracts for Design Professionals

By Mark Schultz, Esq. - Henderson, Franklin, Starnes & Holt, P.A. - Download Article pdf

The author breaks down the areas of a contract into five categories:
1. Scope of Work
2. Change in scope of work/change orders
3. Negligence standard
4. Limitations liability
5. Consistency

Key Contractural Concerns

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

Lessons From The War Room: Key Contractual Concerns for Engineering Service Agreements.

Personalized Contract Review Services

By Tom Owens - Owens Legal Services PLLC - Download Article pdf

Hall & Company is offering a contract review program
with a specialized consultant for a flat fee $350 per policy period for firms with 10 or less employees.

Prevailing Party Clause - Don't Get Left with the Bill

By Michele L. Gamble, Esq. & Francesca A. Koscielak, - Collins Collins Muir + Stewart LLP - Download Article pdf

This article provides the advantages and disadvantages of Prevailing Party Clauses and provides some examples of contract language to protect the design professional.

Service Agreement

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

Engineering the Service Agreement: Contractual Issues and Strategies for Engineers.

Skating on Thin Ice: Surviving and Succeeding on Projects with Precarious Contract Terms

By David A. Erickson - Severson & Werson - Download Article pdf

Just as perfection in design and construction is a rarity, so is the perfect design agreement. It is a human enterprise subject to competing positions, competing leverage, preconceived biases, and, ultimately, compromise.

Tips on Contracts

By Steven R. Goldstein - Shaub Ahmuty Citrin & Spratt - Download Article pdf

This article provides 10 important tips on drafting a solid contract.


Documentation
2012 -The Project File - Retain or Not to Retain - And For How Long?

By Ashley L. Hurd, CIC, CRM - Hall & Company - Download Article pdf

From a claim standpoint, the absolute worst thing a design professional can do is to dispose of project documents without having some form of a retention policy in place.

Find out which documents (and why) should a design professional retain.

CA - The Impact of ESI Assembly Bill No. 5

By Michael Edwards, Esq. - Byron & Edwards, APC - Download Article pdf

This article discusses a new bill, signed into law in CA, that could cause a design professional to have to produce all electronically stored information if sued.

Email as a Project Communication Tool: Loose Fingers Sink Ships

By David Ericksen - Severson & Werson - Download Article pdf

E-Mail as a Project Communication Tool: Loose Fingers Sink Ships. To listen to the recorded webinar David Ericksen provided on April 10, 2012 click on the following link: Spring Cleaning your Documentation


Economic Loss Doctrine/ Limitation of Liability
Colorado - Defense to Contractor's Fraud Claims

By Daniel C. Poteet, Esq. - Donovan Hatem, LLP - Download Article pdf

Colorado Court of Appeals Recognizes Economic Loss Rule as Defense to Contractor's Fraud Claims Against Engineer

Colorado - Economic Loss Rule A Viable Defense for Design Professionals

By Marisa Skoglind, Esq. - Donovan Hatem - Download Article pdf

Economic Loss Rule: A Viable Defense in Colorado for Design Professionals

Economic Loss Doctrine Bibliography by State

By - Skellenger Bender Attorneys at Law - Download Article pdf

This indepth bibliography answers the question: Does Economic Loss Doctrine bar tort claims against Design Professionals? Answers are listed by state and case citations are provided

Limitation of Liability

By - Skellenger Bender - Download Article pdf

This index listed by jurisdication (state) answers the question: Are Limitation of Liability Clauses Enforceable? Case Citations and its corresponding statute are also provided.


Environmental Law
CA - Pending CA Legislation may Impact Water Rights

By Kimberly Chew - Burnham Brown - Download Article pdf

Wage Recovery for Illegal Aliens in NY Under the Labor Law.

CA - State Solar Energy Financial Incentives

By Kimberly Chew - Burnham Brown - Download Article pdf

Tax Implications of the CSI. Go Solar this Year!


Ethics
Creating a Culture of Professional Liability Issues Awareness - Code of Ethics

By John M. Lowe, Jr. PE - Lowe Consulting, LLC - Download Article pdf

Creating a Culture of Professional Liability Issues Awareness

Code of Ethics

Having a written Code of Ethics has long been considered to be a desirable document to have. It is intended to explain the expectations of a firm’s management regarding how all of its employees, including management, are to conduct business. It addresses things such as Conflict of Interest, Personal Integrity, Use of Company Resources, and Employee Performance. It lets all employees know what is expected of them and until recently, represented minimal or no potential business risk. However, in 2007, that changed when Federal Acquisition Regulations FAR 52-203-13 – Contractor Code of Business Ethics and Conduct required that firms having certain professional services contracts with the government must have a Code of Ethics.

For the most part, a firm’s Code of Ethics is not problematical, except for the section that addresses standards of individual performance when executing a design. The problem is that this section of the Code of Ethics can be aspirational in nature, setting a very high standard toward which employees should diligently attempt to reach. The employee performance standard can be stated in a way that it exceeds the performance requirements specified in the contract Standard of Care provision. When the Code of Ethics is provided to the government, or other clients, the client may attempt to assert the contractual right to hold the consultant to those standards. If, in the opinion of the client, the Code of Ethics standard is not met, the client may assert that negligence has occurred. In this case, the protection afforded by a carefully crafted Standard of Care is lost and the professional liability policy will likely not cover losses resulting from this situation.

As with Statements of Qualifications, Codes of Ethics should not overstate performance standards that exceed those of the contract Standard of Care. Be sure to review your existing Code of Ethics before providing it to your client or prospective client.


Fiduciary Duty
Breach of Fiduciary Duty and The Design Professional

By Michael Edwards, Esq - Byron & Edwards, APC - Download Article pdf

This article focuses on the trend of courts to rule in some cases that a design professional has a fiduciary duty to their client. Several case examples are given, concerns identified, and best practices are given.


Forensic Consulting
2012 - Has Evidence Been Spoliated? If So, A Motion To Dismiss May Be In Order

By Steven R Goldstein, ESQ - Shaub Ahmuty Citrin & Spratt, LLP - Download Article pdf

Quite often we are asked to defend an action in which a claim is made against a design professional that damages occurred as a result of improper design and/or construction phase services performed by the design professional. More specifically, it is often the case that damages occur as a result of the failure of a product or element of the construction which may have been designed or specified by the architect or engineer, or the subject of inspections or observations by the design professional during the project.

Appearing as a Witness in Court or Deposition

By John R. Riley, Esq. - Montgomery Little & Soran, PC - Download Article pdf

Read John's outline on how to prepare for tiral or deposition testimony.

How to be a Great Expert Witness

By Robert M. Young, Jr., Esq - Wilson, Elser, Moskowitz, Edelman & Dicker LLP - Download Article pdf

This article focuses on some of the risks associated with being an expert witness and provides 10 best practice tips to avoid the pitfalls and develop a successful practice.


Indemnification
Construction Defect Litigation and Indemnity Contracts

By Gregory D. Brown, Scott C. Finch, Richard J. Finn - Burnham Brown - Download Article pdf

This article focuses on the issue of contract language imposing a "duty to defend" on the design professional even if there is no determination of liability. 2 cases are referenced.

Beware Hidden Indemnity Dangers!

By David E. Barker & Christie B. Swiss - Collins Collins Muir + Stewart LLP - Download Article pdf

CA - Enacts Subcontract Obligation to Defend

By Scott C. Finch, David H. Waters - Burnham Brown - Download Article pdf

CA Enacts sweeping changes that limit a Subcontractor's Obligation To Defend and indemnify contractors and developers in connection with residential construction defect claims.

CA - Indemnity & Defense - World After UDCvsCH2

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

California Design Professionals: Indemnity & Defense/The World After UDCvsCh2M Hill

Duty to Defend – A Recent Extension of Crawford

By Douglas Reinbold - Byron & Edwards, APC - Download Article pdf

This article focuses on the dangers of broad indemnity language for design professionals. There is reference to 2 specific cases in CA that could have implications throughout the country.

Express Indemnity Clause - Crawford Redux: Where are the Damages?

By Scott C. Finch & David H. Waters - Burnham Brown - Download Article pdf

This article focuses on the express indemnity provisions in contracts and how they will be enforced. Specifically, careful wording can prevent the obligation to defend.

General Contractor Indemnity

By - Morris, Duffy, Alonso & Faley - Download Article pdf

A General Contractor is entitled to Indemnity by a subcontractor when both the general and subcontractor are liable, and when only the subcontractor is at fault.

How it is Possible for a Design Professional to Win at Trial but still Wind Up Losing

By Scott C. Finch & David H. Waters - Burnham Brown - Download Article pdf

This article focuses on the UDC v. CH2M Hill case where the CA courts ruled that the design professional had to pay for the defense of the contractor even though they were found not negligent on the project.

Indemnification - A contractual sword

By Peter C. Lenart, Esq. - Donovan Hatem, LLP - Download Article pdf

Indemnification - A Contractual Sword and Shield: Tips on how to enter into contracts which leave design professionals well armed and well protected.

Indemnify and Defend: "A Wolf in Sheep's Clothing!"

By David E. Barker & Christie B. Swiss - Collins Collins Muir + Stewart LLP - Download Article pdf

This article focuses on a case in CA (UDC v. CH2M Hill) that determined that a design professional had to provide a defense to the contractor absent the determination of negligence. Also included are examples of recommended indemnity language.

Negotiating the Professional Services Contract Clauses

Insurance
Design Professional Insurance Advisory

By - - Download Article pdf

Why project owners cannot be named as
additional insureds on design firm’s
Professional Liability Insurance Policies

Underwriting Intellectural Property Risks for Architects & Engineers

By David A. Ericksen, Esq. - Severson & Werson - Download Article pdf

Underwriters and insurers in any niche market, such as the professional liability market for architects and engineers ("A/E"), must understand the issues and the capital which drive the market. Learn what are underwriters use to adequately investigate and underwrite these risk.

CASE STUDY - Getting a Second Opinion on Professional Liability Insurance

By - Hall & Company - Download Article pdf

Getting comparative quotes is a simple matter of being diligent as a consumer.
Before you decide that you don’t have the time to consider a second opinion, take a moment to review the following
quotes we developed for an 8 person architecture firm

CO - Impact to GL policies

By Peter C. Lenart, Esq - Donovan Hatem - Download Article pdf

Significant change in Colorado law Impacts traditional coverage interpretation of commercial general liability insurance policies.

Understanding Professional Liability Insurance

By Matthew Copus, CIC - Hall & Company - Download Article pdf

Certificates of Insurance and Notice of Cancellation

By Bill Wilson - Independent Insurance Agents & Brokers of America - Download Article pdf

Some certificate holders are refusing to accept the September 2009 ACORD 25 form because it no longer includes a notice of cancellation, but rather refers them to the policy. This article explains why you should not or can not comply with this demand.

How Much Will Professional Liability Insurance Cost a Start-up Architectural Firm?

By John Becker - Hall & Company - Download Article pdf

In 2010 Hall & Company wrote 315 architectural firms that employed one person. These firms were located in 42 states and were placed with 10 different insurance companies. This article provides sample statistics on what these firms paid for their Professional Liability Insurance Coverage.

Hall & Company - About Us

By - - Download Article pdf

Hall & Company is an insurance brokerage firm that works exclusively to serve the needs of the A/E design community. We have provided insurance to architects, engineers, environmental consultants and land surveyors for more than 20 years. Licensed in all 50 states, we serve more than 3,600 design professionals nationwide.

Founded by a former engineer, Hall & Company is different than the average insurance brokerage. Our task may be selling insurance, but our mission is to understand your practice so we can fully determine its needs and present the best and most cost-effective insurance options.


Managing Risk Exposure
2012 - A/E Professionals Should Meticulously Choose Sub-consultants

By Ashley Hurd - Hall & Company - Download Article pdf

Would you ever consider starting a business venture with just any design professional that happens to come your way and take them on as a business partner? Accordingly, why would you begin a working relationship with a consultant you know nothing about?
As a design professional you scrutinize your clients to manage your risk by the use of an internal client selection process, and you should have an equally thorough selection process for consultants prior to the start of any project.

Building Toward the Paperless Project: Risks, Rewards, and Safeguards

By David A. Ericksen, Esq - Severson & Werson, PC - Download Article pdf

CALIFORNIA - A "Beacon" of Hope for Purchasers of Real Property, at the Expense of Design Professionals

By Joel Halverson - Severson & Werson, A Professional Corporation - Download Article pdf

The California Court of Appeal on December 13, 2012 issued an opinion which is harmful to design professionals performing services in this state, broadening their exposure to claims brought by third party purchasers of properties which they design.

Unless the case, Beacon Residential Community Association v. Skidmore, Owings & Merrill, LLP, et al. (“Beacon”), is overturned by the California Supreme Court, design professionals in California are wise to assume that regardless of their attempts to circumscribe their scope of duty by contract, they will be held to owe a duty of care to subsequent purchasers of the properties they design, particularly if those properties are residential. This, in turn, places additional importance on design professionals’ other contractual protections, such as the rights of indemnification and defense.
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Can You Condo?

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

Can You Condo? Strategic Analysis for Design Professionals Evaluating the Risks and Opportunities of Condominium Projects.

Design Professionals Leaving Projects Before Completing Services Need to be Potected
E-Mail as a Project Communication Tool

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

E-Mail as a Project Communication Tool: Loose Fingers Sink Ships.

Latent Defects of Mergers & Aquisitions

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

Latent Defects: Hidden Dangers & Exposures in Design Professional Mergers & Acquisitions.

Managing Professional Fees

By Ashley Hurd, CIC, CRM - Hall & Company - Download Article pdf

Managing the Construction Manager

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

A General Contractor is Entitled to Indemnity by a Subcontractor when both the General and Subcontractor are liable, and when only the Subcontractor is at fault.

Patent and Latent Defects

By Gary Vinson - Greve, Cliffford, Wengel & Paras. LLP - Download Article pdf

Patent and Latent Defects: How Long May a Designer be Exposed to a Lawsuit Because of Defective Design? This article focuses on the differences between a "patent" defect and a "latent" defect and the differences in exposure to the design professional with specific reference to the length of time with which an injured party can seek restitution.

Protecting Your Intellectual Property

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

Remedying Shop Drawing Problems

By Ashley L. Hurd, CIC, CRM - Hall & Company - Download Article pdf

This article provides insight on how Design Professionals can make the shop drawing review process work to their advantage as a way to avoid claims.

Seven Steps to Effective Risk Management for Design Professionals

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

Where is the Value in Value Engineering?

By Ashley Hurd, CIC, CRM - Hall & Company - Download Article pdf


Mediation
Mediation - A Viable Option

By Steven R. Goldstein, Esq - Shaub Ahmuty Citrin & Spratt, LLP - Download Article pdf

Design professionals often find themselves involved in costly and sometimes lengthy litigation. During the course of that litigation, options routinely available to the design professional include, if appropriate, requesting a voluntary discontinuance of all claims asserted against the design professional or, if such a request is rejected, proceeding with a motion to dismiss the claims. Read more about "A Viable Option" as a remedy to these issues.

Changing Combatants

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

Changing Combatants to Collaborators: building positive relationships between design professionals and construction managers.


Mold Exposures
Mold Exposure

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf

The Mold Menace: It's here! Are you ready? Strategies for construction professionals to respond to and avoid mold exposures.


Offshore Design Services
Offshore Design Services

By David A. Ericksen, Esq - Severson & Werson, PC - Download Article pdf

Outsourcing Design Services Offshore: Opportunity, Necessity, or Blind Gamble?


Privity Defense
Privity of Contract

By Kristina S. Raevska, Esq - Donovan Hatem, LLP - Download Article pdf

The Economic Loss Doctrine Bars an Owner from Asserting Negligence Claims Against a Design Professional with Whom the Owner is Privity of Contract.

The Duty of Design Professionals and the Privity Defense

By Andrew Carlowicz and Richard Gaeckle - Hoagland, Longo, Moran Dunst & Doukas - Download Article pdf

This article focuses on the contractors ability to sue a design professional for purely economic damages even if no contractual relationship exists but only to the degree of responsibility the DP has agreed to undertake.

What about the Architects?

By Andrew Carlowicz and Richard Gaeckle - Hoagland, Longo, Moran Dunst & Doukas - Download Article pdf

This article focuses on a NJ statute that serves to limit the exposure of engineers from lawsuits alleging bodily injury to a construction worker. However, the statute does not extend to architects. Why?


Project Management
Effective Project Management Practices as a Key Risk Management Strategy

By Bob Rosain, PE, PMP - Bob Rosain & Associates, LLC - Download Article pdf

As far as an AEC business goes, risks can really be broken into two categories: General business risks and project risks. General business risks are things like the general ups and downs of the markets we serve, our competition, personnel safety and maybe business continuity during a disaster.

HI - Construction Defect Claim

By Amanda Sirk, Esq. - Donovan Hatem, LLP - Download Article pdf

Hawaii Appellate Court Confirms that a Construction Defect Claim Does Not Constitute an Occurance Under a Commercial General Liability Policy.

Musical Chairs: Managing & Mastering Multiple Models of Project Delivery

By David A. Ericksen - Severson & Werson - Download Article pdf

Even brief contracts provided by the AIA, AGC and others, as well as the related construction industry literature, reveals a crowded field of terms describing the "completing" concepts for project delivery such as: Design-Bid-Build; Design-Build; Integrated Project Delivery; Multiple Prime; Fast Track; Construction Manager at Risk; Guaranteed Maximum Price; Cost Plus Fee; and more...

NV - Construction Defect Law

By Andrea K. Pressler - Erickson, Thorpe & Swainston, Ltd. - Download Article pdf

NV: NRS Chapter 40 & Evolving Area of Construction Defect Litigation in Nevada.


Property Casualty
Property Casualty Insurance Coverages through Hall & Company

By - Hall & Company - Download Article pdf

Let us show you what we can do for you and how much
easier it is to have your PLI and PC coverages with a firm
that specializes in insuring design firms.


Retention
Alter to Retention Process for AE on Public Projects

By Brian C. Newberry, Esq. - Donovan Hatem, LLP - Download Article pdf

New Rhode Island Legislation Proposes to Alter Retention Process for A/E Firms on Public Projects.


Risk Management Newsletters
Beazley A&E Reporter - Fall 2012

By Colleen Palmer - Beazley Group - Download Article pdf

The Problem With Assuming Too Much -
This edition of the A&E Reporter will detail the challenges for professionals who take on a project when the initial team is no longer involved. Learn about the issues a new firm faces when it finishes what someone else stated...

Pacific Northwest Design Professional Legal Update - Summer 2012

By David K Eckberg - Skellenger Bender , Kara R. Masters - Skellenger Bender - Download Article pdf

Last year, the City of Seattle adopted Ordinance No. 123698, mandating that certain employers provide a certain amount of paid “sick” and “safe” leave for their employees. Because of the complex nature of this ordinance and its interplay with other employment laws, it is anticipated that many firms will continue
to face compliance issues and questions as new and modified employment policies are unfolded in response to the Seattle mandate.

CA - New Laws on Design Professional's Liens

By Joel Halverson - Severson & Werson , Mark Zunino - Severson & Werson - Download Article pdf

Getting paid without getting sued can be a challenge, indeed, an art, for design and construction professionals, particularly in a recessionary era. Now there are new tools for design professionals and their legal counsel to employ in this art. Comprehensive new laws go into effect in California concerning liens.

Beazley AE Reporter - May 2012

By Colleen Palmer - Beazley Group - Download Article pdf

In this issue:
Will New ICC Rules Improve International Disputes Process?
Wisconsin Court of Appeals Prohibits Breach of Contract and
Negligence Claim based on Statute of Repose and Application of Economic Loss Doctrine

Legal Update - FAQ's About Wood Placements in Rivers

By Pamela S. Tonglao - Skellenger Bender , David K. Eckberg - Skellenger Bender - Download Article pdf

Funding for riparian habitat restoration projects has grown, and large woody debris is being used with increasing frequency to protect natural resources and infrastructure alike. The rising
interest in these dynamic in-river structures that mimic nature has spawned questions about liability that go beyond some of the issues addressed in our earlier white paper.

DPL News - Jan 2012

By Bruce Demeter, VP - Design Professional Liability - OneBeacon Professional Insurance - Download Article pdf

In this issue:
Guide for Sustainable Projects
OBPI on the West Coast and in the Midwest
Coverage Tip: Hold Harmless Provision
Claim Tip: Get All Agreements

DPL News - Sept 2011

By Bruce Demeter, VP - Design Professional Liability - OneBeacon Professional Insurance - Download Article pdf

In this issue:
Design Services Agreement vs. Standard of Care
Acting Ethically Case Study
Coverage Tip: Industry Recognized Standard of Care
Claim Tip: Submission of Circumstances and Notices

Design and Construction Management Professional Reporter - Nov 2011

By Megan E. Lehman, Esq - Donovan Hatem , Eric Cohen, Esq - Donvan Hatem , Sa'adiyah K. Masoud, Esq - Donovan Hatem - Download Article pdf

In this issue:
•Texas "Loser Pays" Legislation Brings Significant Changes to Texas Civil Practice by Amanda Y. Sirk, Esq.
•Pennsylvania's New 'Fair Share Act' Provides a More Equitable Distribution of Damages among Desogn PRofessional Defendants by Megan E. Lehman, Esq.
•Design Professionals' Gains in New Jersey's Economic Loss Doctrine by Eric Cohen, Esq.
•Nevada Supreme Court Strictly Enforces Certificate of Merit Statutes by Sa'adiyah K. Masoud, Esq.
•New Jersey Appellate Court Limits Liability Based upon Reasonable Contractual Provision by Jacqueline J. Rompre, Esq.

Pacific Northwest Design Professional Legal Update - Summer 2011

By Pamela S. Tonglao - Skellenger Bender Attorneys at Law - Download Article pdf

In this issue:
Sales Tax Exposure on Hybrid Agreements for Constuction and Consulting Activities

The Accountant/Attorney Liability Reporter

By The Counselors at Law, Donovan Hatem - Donovan Hatem LLP - Download Article pdf

Inside this Issue
• Fair Value Opinion by John B. Cannarton, Jr., PC
• Auditor's Obligation to Third Parties, by Nathanial Paty and Cheryl Waterhouse

DPL News - July 2011

By Bruce Demeter, VP - Design Professional Liability - OneBeacon Professional Insurance - Download Article pdf

In this issue:
Defending Public Claims
Acting Etically Case Study
Copyright Infringement
Dispute Resolution Meetings

DPL News - May 2011

By Bruce Demeter, VP- Design Professional Liability - OneBeacon Professional Insurance - Download Article pdf

In this issue:
Green Building Standards
Acting Ethically Case Study
Risk Management Tips
Feasibility Studies


Storm Water Pollution Prevention Plans
Pardon Me Your SWPPP is Showing

Sustainable Design
Green and Sustainability Design: Part 1

By David J. Hatem, PC - Donovan Hatem - Download Article pdf

Green and Sustainability Design: Part 1: Professional Liability Risk and Insurability Issues for Design Professionals

Green and Sustainability Design: Part 2

By Sue E. Yoakum - Donovan Hatem, LLP , Donna M Hunt - Lexington Insurance Co. , Valerie P Onderaka - Risk Specialists Insurance Agency, Inc. - Download Article pdf

Green and Sustainable Design: Part 2: Contractual and Risk Management Recommendations for Design Professionals to Manage Risk and Maximize the Availability of Professional Liability Insurance.

Green Products = Increased Risk for Architects?

By Mark Schultz, Esq - Henderson, Franklin, Starnes & Holt, PA - Download Article pdf

This article focuses on the increased popularity of Green Design and touches on some of the increases in risk that are inherent in any new product or method.

Managing Evolving and Innovative Design Delivery

By David A. Ericksen, Esq. - Severson & Werson - Download Article pdf

A sustainable Standard of Care? Managing Evolving & Innovative Products, Processes, & Performance Standards in Design Delivery.

Sustainable Innovation: Planning, Practice & Protection

By David A. Ericksen, Esq. - Severson & Werson, PC - Download Article pdf


Unruh Act
CALIFORNIA - The Impact of Munson v. Del Taco on California Design Professionals

By Michael M. Edwards, Esq. - Byron & Edwards, APC - Download Article pdf

This article outlines the effects on ADA litigation as the result of the Munson case in CA. Below is a quote from this article:

In light of the holding in Lonberg v. Sanborn Theaters, Inc. (9th Cir. 2001) 259 F.3d 1029, the class of ADA violators can be owners, lessors, lessees or operators of a public accommodation; however, design professionals cannot be sued in the Ninth Circuit (which
circuit includes the State of California) for an ADA violation. Lonberg determined that, while the ADA applies to owners and lessors (and certain others), its reach does not extend to design
professionals. Interestingly, some Federal appellate courts have come to a different conclusion on ADA suits; however, to date, design professionals are protected from Federal ADA lawsuits
filed in California. This fortunate result, though, does not prevent owners or lessors, who are sued under the ADA and/or the Unruh Act, from seeking implied (or possibly express) indemnity
from a design professional who allegedly committed professional malpractice, which resulted in the ADA violation, or a personal injury suit alleging a Munson cause of action.

After Munson, it is highly likely, as borne out by a recent trend that California state court actions founded upon the Unruh Act, and based upon ADA violations, will commonly be brought against owners or lessors for damages. It has and will continue to produce indemnity
cross-suits by such defendant owners or lessors against design professionals for alleged malpractice in connection with the ADA violation allegedly causing the loss.

Insurance coverage questions arise from these cross-suits; For example, questions arise from: (a) the nature of any “ADA violation” exclusions found in the Design Professional’s errors and omissions policy; (b) the ability of the indemnitee cross-complainant to recover from the design professional sums in excess of the actual damages suffered by the plaintiff (which the Unruh Act appears to allow); and (c) possible questions over an attorneys’ fees recovery by the cross-complainant against the design professional.