I am currently President of the Ohio Chapter of the American Board of Trial Advocates (ABOTA). Our chapter has about eighty members comprising of plaintiff and defense attorneys throughout Ohio. One of the main missions of ABOTA is to protect the right to civil jury trials so we are generally attuned to what is going on in the State. The three largest counties, Franklin (Columbus), Cuyahoga, (Cleveland), and Hamilton (Cincinnati) had not scheduled any jury trials until mid-April (Franklin) and mid- March (Cuyahoga, Hamilton) while smaller counties had pushed forward sooner. Civil cases are now slowly moving forward all across the State with court rooms made as COVID safe as possible.
I am General Counsel for ACEC Ohio and made a presentation for their “Rising Leaders” program in late March. COVID protocol was observed with those in attendance at separate tables 8-10 feet apart. Masks were worn at all times. My practice is entirely representing architects and engineers. For the most part my clients have been able to weather the COVID storm. Many projects were slowed but few were entirely shut down.
The lack of courtroom availability has forced counsel for parties involved in construction disputes to be more creative/cooperative in resolving issues. We have had mediations both in person and via ZOOM in an effort to resolve matters knowing that the normally long litigation process has gotten even longer due to COVID. Trials that were scheduled over the past year which were initially stayed, have all been reset toward end of the year or into the first half of 2022 assuming COVID will be in the rearview mirror. Discovery has taken place on limited basis as to depositions with most being done via ZOOM.
In conclusion, the trial slow down due to COVID has not greatly affected my clients from the legal standpoint as much as had been anticipated. In fact, it forced counsel and parties to find solutions which hopefully will carry on regardless of COVID.
As legal professionals representing design professionals, we have been grappling with the implications of delayed justice for over a year while trying to balance the safety of clients, jurists, court personnel and lawyers during the pandemic. The pandemic, however, presented an opportunity few could have foreseen — a chance to modernize an archaic system, riddled with decades-old rules and practices, previously resistant to internet transformation.
In spring 2020, the largest, busiest and most complex court system in the country came to a screeching halt, at a time when hundreds of civil trials packed New York’s state courts and the city’s courthouses were at their busiest. All trials statewide were postponed and the courts that were briefly reopened in the fall were again suspended mid-November amidst a rise in infections. Only recently, on March 22, 2021, civil trials resumed throughout the state. In New York City, there were 26 jury trials, 19 civil trials and seven criminal trials on schedule for the first week of courts’ reopening. By comparison, in November 2020, the New York state court system had over 1.1 million pending civil actions and over 100 thousand criminal actions in the pipeline.
Federal District Courts fared better with advancing the civil actions, primarily because of the more stringent procedural rules and more hands-on involvement from the federal jurists. Still, the challenges to evidentiary hearings with jurors presented an insurmountable obstacle. Most participants in these court disputes will not have their day in court for years to come.
Last year, most states, including New York, allowed virtual depositions, court appearances, and hearings. This was a much-needed change in how the legal system operated to date. With any hope, gone are the days when attorneys bill a client for hours spent traveling to court for a quick five to ten-minute preliminary or pretrial conference.
In December 2020, the federal judiciary announced a two-year pilot program to livestream the audio of hearings in 13 district courts. Arguments have now even been livestreamed before the U.S. Supreme Court. In late January 2021, the New York City Civil Court in Manhattan, hearing cases with a monetary limit of up to $10,000, launched an online dispute resolution pilot program for small claims matters.
With trials on hold, we have seen exponential growth in virtual mediations and arbitrations, as alternatives to litigation. Early on, there was great apprehension among litigators to partake in the Alternative Dispute Resolution (ADR) proceedings, primarily due to technical challenges with document sharing and the inability to evaluate witnesses’ non-verbal cues. This quickly changed, as attorneys realized virtual proceedings were the only means available to them and their clients. As the year progressed, these ADR proceedings proved to be the main avenues for advancing the disputes to a conclusion, as state courts grappled with administrative quagmire and awaited decisions on reopening policies and guidelines.
What does the future hold for design professionals and insured policyholders?
Virtual hearings and proceedings, with all their inherent anomalies and awkward moments, are here to stay. But audio livestreams and video appearances should not replace in-person proceedings. Non-verbal communication, facial expressions and body language are lost or absent altogether if a hearing is audio-only or may become distorted in a video feed or if a connection gets dropped. We expect courts to continue to upgrade their antiquated infrastructure to accommodate more virtual attendance and participation for parties, jurors (with court-issued tablets or laptops), judges and attorneys.
Fortunately for the state court proceedings, early mediation has now become a mandatory step in every case filed in the state courts in New York. With a recent amendment to the state trial court rules, parties can jointly request a settlement conference before the assigned justice or another judge at any time during the litigation. Courts remain fully committed to implementing a model of presumptive early ADR procedures in order to transform the old culture of “litigate first” to the new culture of “mediate first” in all appropriate cases. This is a welcome development, considering the potential expense, time-commitment and uncertainty of a judge/jury ruling on a dispute’s outcome.
ADR proceedings, however, will remain the leading dispute resolution forum for design professionals and other construction industry stakeholders for years to come. Standard forms of agreement for the A/E community, offered by the American Institute of Architects (AIA) or Engineers Joint Contract Documents Committee (EJCDC), will continue to emphasize the industry’s deference for mediation. Leading dispute resolution centers, including the American Arbitration Association, JAMS and others, are likely to expand their virtual dispute resolution offerings – both mediations and binding arbitrations – for construction/contract disputes with experienced construction industry professionals, frequently non-lawyers, serving as neutrals.
The following is a by the numbers report from the ACEC Research Institute as of the end of 2019. These numbers speak loudly and lays out just how impactful the Engineering & Architecture industry is, and how it contributes to the overall GDP. Download here.
In mid-November, F. David Shipley passed away. He was 81 years old.
Dave ran a successful insurance brokerage–Shipley and Associates–for many years. Along the way, he and three colleagues co-founded a/e ProNet in 1988. Dave went on to serve as our Treasurer for more than two decades. Recently, he was deservedly named a Member Emeritus.
Next year, a/e ProNet will celebrate its 30th Anniversary. We’ve been around a long time, but we continue to be a dynamic organization. Now we’re proud to announce a new category of a/e ProNet membership.
Effective immediately, a/e ProNet’s members rolls will include Associate Members: invited attorneys who specialize in serving design professionals.
Associate Member information:
An Associate Member must be an attorney who specializes in providing services to design profession and companies providing professional liability insurance to design professionals
They must be involved in national and/or local design professional associations
They must be recommended by two members of a/e ProNet and complete an application
The application for membership and recommendations will be reviewed by the Membership Committee and approved by the board of directors before an invitation for membership can be extended
The Associate Member shall pay an annual membership fee
An Associate Member can attend all a/e ProNet meetings, receive all information distributed to the membership, and be listed on our website as an Associate Member
At the end of this month, a/e ProNet will hold its annual meeting in Chicago for our members, affiliates, and sponsors. ProNet has held these fall meetings for more than two decades, but the goal and capacity of the meeting continues to evolve to meet the climate of the industry. This year, we’re proud to host Richard Friedman, president of consulting firm Friedman & Partners as our guest speaker.
Richard has worked in and consulted for the A/E/C and environmental consulting industries for more than 25 years. Starting out in the trenches as an environmental consultant and business developer for Stone & Webster Engineering in Boston, Rich expanded his reach as the partner in charge of marketing and business development research, consulting and training for ZweigWhite. He also managed a variety of other projects involving strategic planning, mergers and acquisitions, and executive search. Since launching Friedman & Partners, he has worked with firms at all levels, from small niche consultants to large ENR 500 organizations. He’s also conducted hundreds of seminars and workshops for firms, design and environmental industry professional associations and venues, including AIA, SMPS, ACEC, AGC, NSPE, Build Boston/ArchitectureBoston Expo (ABX), WTS and Chief Executive Network. Friedman & Partners is a marketing and management consultancy serving the U.S. and Canadian AEC and environmental consulting industries.
On the final morning of our fall meeting, Richard will speak to our members on “Selling to Architects and Engineers: Market Research and Penetration Strategies that Work.”
Emily is working toward a master’s degree in civil and water resources engineering from Colorado State University. She is the winner of the first annual a/e ProNet Engineering Scholarship, a $5,000 award.
“Engineering is much more than the roof above our heads, it is the solid foundation of our society.” — Emily Valenzuela
Our organization sponsors two annual scholarships, one with the ACEC and one with the AIA. We are proud to support the next generation of architects and engineers as they pursue their education. You can find details about both awards, including lists of past winners, on the Scholarships page of our website.
Honor Award – New Building – (Project cost greater than $5 million)
Project Name: Cummins LiveWell Center
The jury felt this project achieved a rich and simple elegance in both plan organization and exterior lines. We commend the connectivity between the indoor and outdoor environments, the palliative interiors, and use of calming tones and textures. The architectural team’s design response achieved the goal of challenging the stereotypical doctor’s office and exemplifies a holistic integration of architecture, building systems, function and site design.
Honor Award – Renovation / Addition
Project Name: Jarden Home Brands
This project creates a work environment successfully designed to foster collaboration and innovation. The design translates well from the initial concept sketches to the three-dimensional outcome with areas defined by varied use of color, texture, and architectural elements. Open collaborative workspace is balanced with quiet space for focused work. A courtyard and skylights enhance the experience for a seemingly large floor plate, bringing daylight to interior spaces. The client’s products are artfully integrated into the design in light fixtures and an art installation that serves a hallmark of the design.
Merit Award – Interior / Retrofit
Project Name: Business Furniture Corporation Office + Warehouse
The jury was particularly impressed with the design team’s expression of scale through forms, layers and textures. Marked attention was given to the importance of ceiling planes to define a space. The project clearly articulates a dynamic and collaborative work environment but also showcases the client’s passion for its product through its integration with the design.
Project Name: Cummins LiveWell Center
The Cummins LiveWell Center garnered the jury’s unanimous support for the Design Excellence award. The beautifully proportioned, elegant building goes beyond ordinary expectations. The building’s transparency offers abundant, but managed views, to the mission within. The low-scale, “E” shaped building introduces daylight and affords occupants with views to the outdoors at every turn. Views to gardens in the courtyards and the landscape beyond support our biophilic connection to nature and embodies evidence-based, restorative concepts that support healing and wellness. Beautifully executed and well done.
Merit Award – Historic Restoration
Project Name: Indiana State University – Normal Hall
A respectful revival of a building allowed to badly deteriorated over time, and a commitment from the University to the future by restoring this oldest surviving building on-campus. The Jury admired that the design team studied archival photos to reproduce furniture and replace lost materials. The Jury applauds the restoration of the historic stained-glass dome as a centerpiece to celebrate this building. The addition articulates clearly the differentiation of new vs old building with a design reflective of its time, respectful of historic while clearly of a new century, and doesn’t compete but is compatible with original scale and materials. The outcome reflects patience with the process of restoring an old building where unexpected surprises were revealed through careful removal process. Congratulations – well-done!
For design professionals, finding the right insurance broker can present a challenge. You need someone with ample experience handling the professional liability needs of architects and engineers, and who offers a wealth of value-added services. Only if your broker has a comprehensive understanding of what you and your firm are all about can he or she be of real use to you. Lacking this knowledge can leave your firm vulnerable in a shifting insurance marketplace. A good specialist broker is committed to investing the necessary time and resources to your account. They find you the best coverage for the best price, and they save you the considerable time it would take for you to do so on your own.
What is professional liability insurance and why is it important?
A professional liability (errors and omissions) insurance policy provides coverage to defend and indemnify a professional firm against claims alleging negligent acts, errors, or omissions in the performance of professional services.
Any project can give rise to a claim. Even if your firm employs an excellent risk management strategy, it is vulnerable to being named in a lawsuit. The cost of that defense can mount fast, even if your firm wasn’t in the wrong. A professional liability policy covers the cost of defense.
In the event that your firm is found negligent, and that the firm’s negligence gave rise to the claim in question, your professional liability policy will cover your firm for the damages you’re
legally obligated to pay, up to the policy limit. (Note: In most cases, defense costs erode the policy limit. Having adequate limits to cover both defense and indemnity is important.)
Why do I need a specialist insurance broker? Shouldn’t I be able to purchase my professional liability policy directly from an insurance company?
For architects and engineers, maintaining an active and adequate professional liability insurance policy is very often a legal requirement. And while a basic professional liability policy is straightforward enough for anyone to acquire, the insurance needs of design professionals are more complex than that.
The insurance industry is full of companies who want your business, but no two professional liability insurance carriers are exactly alike. Among the major differences are:
the size of policy limits offered;
whether multiyear policies are available;
underwriting appetites for types of engineering services;
and claims service.
Some companies require a 10-year loss history from design professionals, while others only require a five-year loss run. A specialist broker knows what the markets are doing, who the underwriters are, and how to present your firm in the best possible light. He or she will have understand each insurance company’s application and is quick to assist you in providing requested information. The cost of your insurance depends on this knowledge and attention to detail used on your behalf.
Here it should be noted that insurance companies often reward longevity. If your firm has been insured by a single company for a number of years and doesn’t have an especially adverse claims history, it’s likely that your premiums have been fair and endorsements (e.g., per project limit increases) have been easy to come by when needed. This does not mean that your current insurance company should be the only one to see your renewal application, however. A specialist broker understands the importance of approaching multiple markets periodically, either to reassure you that your policy is in the right hands or to grant you the opportunity to trade up.
Whether the market in a given year is hard or soft, a skilled professional liability insurance broker’s experience will benefit your firm. You need competent advice from a broker with the right perspective, both on your industry and the needs of your firm, as well as on the insurance marketplace as a whole.
Audrey Camp is the Web & Social Media Consultant for a/e ProNet. She spent six years with a/e ProNet member IOA Insurance Services in California as a licensed account manager, specializing in the professional liability needs of architects and engineers. Today, Audrey works as a freelance writer living in Oslo, Norway. Her work has appeared in several literary magazines, journals and anthologies, and she is a founding member of the Oslo Writers’ League (OWL). She has also written for English-language Norwegian news sites and magazines. Most recently, Audrey co-authored two books—Startup Guide Oslo (Oct 2016) and Startup Guide Vienna (March 2017)—for a Danish company called Startup Everywhere, a process that inspired her appreciation for social entrepreneurship and intrapreneurship. Audrey has managed the a/e ProNet website, blog, social media presence and other publications since 2011.