a/e ProNet Archives - Page 5 of 11

Announcing our 2014 a/e ProNet Scholarship Winners!

By Lynda

We’re proud to announce that the American Institute of Architects (AIA) panel–which includes a/e ProNet member Tom Coghlan of Design Insurance Agency, Inc.–has selected Kevin Fletcher and Nathan Blair to receive the 2014 a/e ProNet AIA David W. Lakamp Scholarship.

The scholarship program was initiated by a/e ProNet in 1990, and includes an annual award of $5,000 to two architecture students who demonstrate a particular interest in the principles of management in architecture practice.

You can read more about our scholarship and how to apply next year at our website. But here, let’s learn a little more about the next generation of leaders in the architecture community.

Kevin Fletcher

Kevin Fletcher grew up in Miami, FL and will be completing his Bachelors of Science in Architecture at Wentworth Institute of Technology in 2015 with plans of attending graduate school in the fall of 2015. During his time as an undergraduate student, Fletcher, a Dean’s List Scholar, has remained an active member of the American Institute of Architecture Students (AIAS).

In the summers throughout his college education, Fletcher has gained experience working as an Intern at BC Architects AIA, Inc. Prior to graduation, he has applied his talents in areas of marketing presentations, conceptual design, design development, and construction documents. All of which have contributed to his understanding of building systems, codes, and construction methods. Following graduate school, Fletcher plans on pursuing his NCARB registration along with his LEED accreditation.

Apart from his academic and professional involvement within the field of architecture, Fletcher has spent time developing skills in other areas of graphic design, photography, and videography. All the while, maintaining an active lifestyle along with a passion for travel.

Nathan Blair

Mr. Blair graduated with a Bachelor of Science in Architecture from the University of Utah in 2014. He will be returning to the U of U in the fall to complete work on a Masters of Architecture with an expected graduation in 2016. Mr. Blair is currently employed with Epic Engineering located in Heber City, UT. He has immensely enjoyed his time there helping to grow a newly established architecture department. Upon completion of the Master’s degree program, it is Mr. Blair’s intention to seek fulfillment of IDP credit hours with Epic Engineering.

Mr. Blair’s design interests center around identifying and isolating the spirit of our time with an affinity for communicating these visions through contemporary materials and methods. Mr. Blair was recently able to implement these ideologies by competing in the CTBUH Student Tall Building Design Competition, receiving positive remarks. He is also looking forward to participating in the University of Utah’s DesignBuildBLUFF program.

During his free time, Mr. Blair will most likely be found fly fishing. He also enjoys playing tennis, golf, billiards, and getting sushi on the weekends. Mr. Blair is constantly striving to improve himself personally and professionally, and concludes in his own words, “My name is Nathan Blair. I’m a lifelong student, an aspiring architect, and I’m a Mormon.”

Congratulations, Kevin & Nathan! We wish you both the best of luck in your academic and professional careers.

Stirring the Pot: Workplace Drug Policy Implementation in the Era of Legalized Medicinal and Recreational Marijuana

By Lynda

Two states have legalized the recreational use of marijuana within the last year, and it feels like the trend will continue to unfold, too. How does the state-level legalization of a federally-restricted of a narcotic impact workplace drug policy? Our April 2014 Guest Essay, authored by Stephanie Rawitt of Clark Hill, seeks to answer this very question for you. The following is an excerpt of that essay. You can download the full PDF of the newsletter for free from our website.

In a wave of change that children of the 1960s only dreamed, debated and theorized about, almost half of the states in the United States have now passed laws legalizing the controlled distribution of medicinal marijuana, and two states have even legalized the sale of recreational marijuana. While this could truly be the “Dawning of the Age of Aquarius” straight out of the Broadway musical Hair, these new laws raise a variety of questions for employers who have drug screening programs or any type of drug-free workplace policy. The big question for employers is – are their drug-free workplace policies still enforceable? More specifically, what happens when an employee or job applicant with a prescription for medical marijuana fails a drug test? Will employers who discipline employees using medical marijuana who fail drug tests face liability under the Americans with Disabilities Act or their respective state anti-discrimination laws? While in one sense, there are easy answers to the questions raised by the states’ legalization of marijuana, there are many grey areas which require employers to understand their state and local laws and also to pay attention to the landscape of this evolving issue.

For the most part, courts have been affirming an employer’s right to enforce its drug-free workplace policies. Despite the increasing rise of the states’ respective medical marijuana laws and the legalization of recreational marijuana in Colorado and Washington, marijuana possession and use is still illegal under federal law. The Controlled Substance Act (CSA) categorizes marijuana as a Schedule I drug, which means that it has a strong potential for abuse and is not currently recognized by the federal government as an acceptable medication. See, 21 U.S.C. §§811-812. In 2005, the U.S. Supreme Court held that the possession of marijuana is illegal under the CSA regardless of whether a state allows the use of medical marijuana. Gonzales v. Raich, 545 U.S. 1 (2005). Plainly, with reference to this issue, federal law will pre-empt state law where there is a conflict between the two.

Given that marijuana use and possession are illegal under federal law, employers that have federal contracts or are subject to federal drug-free workplace regulations should not need to change or modify their existing policies. These employers should continue to comply with applicable federal law, even if they are located in a state where marijuana has been legalized for medicinal or recreational use. Continue reading “Stirring the Pot: Workplace Drug Policy Implementation in the Era of Legalized Medicinal and Recreational Marijuana”

Waiver of Subrogation: A Valid Defense for Architects and Engineers?

By Lynda

An attorney is asked to defend an architect in a claim for defective design of a geothermal HVAC system, which allegedly caused an explosion and several million dollars of property damage to an owner’s manufacturing facility. He reviews the file, making notes. The plaintiff is the owner’s casualty insurer, which has paid the claim and sued the general contractor in subrogation. It’s actually the general contractor who has named the architect as a third-party defendant, seeking contribution and indemnity. All sorts of interesting defenses present themselves: statute of repose (work was completed years ago), no common law indemnity claim, no negligence…but what about the contracts for the original project?

Contained within the AIA A201 General Conditions is a boiler plate “waiver of subrogation” clause. It appears to bar subrogation claims for damages covered by insurance on the property. The owner’s carrier picked up the tab, so how can it sue in subrogation now? Are these waivers of subrogation provisions enforceable?

Since the project is in North Carolina, our inquiry starts with a 1987 North Carolina Court of Appeals decision, St. Paul Fire & Marine Insurance Company v. Freeman-White Associates, Inc. The case involves an architect who performed design services for a Charlotte, North Carolina hospital. During construction, a wing of the hospital collapsed, causing significant property damage. The hospital’s insurer paid the claim under an “all risk” policy and then sued the architect in subrogation. The agreements between the parties to the construction incorporated the AIA A201 General Conditions, including its standard waiver of subrogation clause, and the clause was applied by the trial court to dismiss the complaint against the architect under Rule 12(b)6. Unfortunately, on appeal, the court of appeals declined to enforce the waiver of subrogation provision and reversed the trial court’s dismissal.

The rationale? The appeals court held that because the contract required the architect to provide coverage for its own errors and omissions, the contract was susceptible to two interpretations: 1) the true intent of the contracting parties was that the owner would waive all claims for damages against which the owner had insured itself; or 2) the contracting parties intended for the architect to insure against its own negligence in order to negate the waiver as to losses caused by the architect’s negligence.

Not a great result for the client. However, St. Paul Fire & Marine Insurance Company v. Freeman-White Associates, Inc. is a 1987 decision. Surely there has been some better law made since then…

Waiver of Subrogation in General in Construction Contracts

“Subrogation is the substitution of [one person or entity] to the position of another, an obligee, whose claim he has satisfied…” Thus, in the insurance context, the doctrine of subrogation allows an insurer who has indemnifed its insured to step into the shoes of its insured and sue any at-fault party which may have caused the damages. The right of subrogation may arise by equitable, common law principles, or by virtue of any express assignment in the insuring agreement. The policies underlying subrogation are appealing: 1) it feels “fair” that the ultimate liability for a loss should land on the wrongdoer, not an insured’s insurer; 2) in theory, subrogation should keep insurance premiums down; and 3) parties remain incentivized to avoid mistakes. In addition, fault-based claims in the midst of construction can cause delays and increased hostility during the project. Costly litigation would ensue, the avoidance of which was one of the purposes for which the property insurance was originally obtained. Continue reading “Waiver of Subrogation: A Valid Defense for Architects and Engineers?”

Are you an SDA Certified Design Firm Administrator?

By Lynda

We’re especially proud of our partnership with the Society for Design Administration (SDA). Our members are well aware of the important role office administrators play in design firms, particularly when it comes to insurance matters. Today, we want to congratulate Penny Nelson, Director of Finance for Douglas Pancake Architects in Irvine, California, on passing the SDA Certified Design Firm Administrators exam! Ms. Nelson is the Orange County SDA’s Chapter President.

What is CDFA?

The SDA, the recognized leader in education for best practices in the A/E/C industry, offers a credential that recognizes your achieved administrative and management expertise, the Certified Design Firm Administrator (CDFA) designation. The CDFA credential is a voluntary certification designed to elevate the professional standards in design firm management and administration and contribute to the firm’s organizational growth and maturity through better practices in firm management. The credential comprised by the SDA’s Certification Program distinguishes and supports the roles performed by the spectrum of administrators and managers in the A/E/C firm. Furthermore, enhanced marketability and increased earning potential are just two of the many benefits CDFA certification provides.

CDFA certification recognizes an individual who has met a rigorous standard of experience and expertise in design firm management and administration and who has demonstrated their knowledge of the practice and related disciplines through a thorough examination of management and administrative competencies. This individual further adheres to the ethics and responsibilities of the profession as outlined in the SDA Code of Ethics.

Last year, we announced that a/e ProNet will pay one half of a new SDA member’s dues if that member’s insurance broker belongs to a/e ProNet… Chapters can partner with the local broker and reach out to principals and managers in their network. How about that for a good deal! Contact your local a/e ProNet broker today…

Shout-out Credit:

Alicia K. Igram, AAI, VP & Branch Rep
Design & Consulting Liability Specialist
IOA Insurance Services – Aliso Viejo, CA
Email: Alicia.Igram@ioausa.com / Phone: 949-680-1789

Application Deadline Extended: David W. Lakamp a/e ProNet Scholarship

By Lynda

The David W. Lakamp a/e Pronet scholarship deadline has been extended to June 11, 2014. Get your application in a soon as possible!

Two students, who best demonstrate strong interest in practice management, will each receive a $5,000 award. The scholarship is open to fourth year undergraduates and graduate students of architecture enrolled in a NAAB- accredited professional degree program. Submissions are reviewed by jury panel that consists members of the AIA Practice Management Knowledge Community (PMKC) and the a/e ProNet organization. Candidates must submit a copy of their transcripts, two letters of recommendation, and an essay on how they would resolve a project management dilemma.

For more information about the scholarship click here. To download the application click here .

You can also read about past scholarship winners on the blog.

Design Professionals and the Dodd-Frank Act

By Lynda

The following is the introduction to Design Professionals and the Dodd-Frank Act, the January 2014 issue of ProNetwork News:

On September 18, 2013, the Securities and Exchange Commission adopted the final rule under the Dodd-Frank Act regarding the registration of municipal advisors. The new rules were published in the Federal Register and became effective on November 20, 2013. This article will provide a general discussion of how the Dodd-Frank Act and the final rules may impact engineers and other design professionals providing services to non-federal governmental clients. You should seek legal advice for your specific situation as this article only provides general information and is not intended to provide legal advice or interpretation of the Act for particular situations.

“Engineers providing engineering services” are specifically excluded from the statutory definition of “municipal advisor” set forth in the Dodd-Frank Act.1 As such, engineers do not need to be registered as municipal advisors provided that they are not giving advice or making recommendations regarding municipal financial products or the issuance of municipal securities. Unfortunately the Act provides no clear line of demarcation of when an engineer’s advice or recommendation falls outside of the “engineering services” exclusion. The final rule does provide some guidance as to the scope of the engineering services exclusion. Unfortunately, the exact location of the line separating permitted engineering advice from advice requiring the engineer to be a registered advisor remains blurred.2 We suspect it will take several years before enough real world situations are evaluated by the SEC to provide effective guidance of how the SEC will interpret the statutory engineering exclusion. Unfortunately, this clarity will likely develop through the court system as suits are filed alleging that engineers crossed the line into giving prohibited advice on projects where the revenue streams or operating costs do not match the projections. Consequently, until the line is clarified, we recommend a cautious and conservative approach. Continue reading “Design Professionals and the Dodd-Frank Act”

Review of the Owner/Design Professional Agreement from The Design Professional’s Perspective

By Lynda

This article reviews some of the issues addressed in a standard Owner/Design Professional Agreement, outlines concerns from the Design Professional’s perspective, and discusses how the Design Professional can reduce liability on a project and ensure equitable adjustments to the contract price and schedule for changed or additional design services. The agreement contemplated by this article is one to be used as part of a traditional design-bid-build approach.

Standard of Care

When trying to hold a Design Professional liable for negligence, one of the first legal considerations is the standard of care owed. Absent an express contractual warranty, the law does not require the Design Professional to guarantee that the design will be perfect. Rather, the standard of care that the courts will typically apply is that degree of care which a reasonably careful architect/ engineer would use under like circumstances. However, nothing prevents an Owner from seeking contractual language that increases the typical standard of care owed by the Design Professional to the level of an express warranty of the design; in fact, Owners frequently attempt to do so in their proposed agreements – and courts will enforce such language. This is a danger to the Design Professional, as it is possible that the increased standard of care could go beyond professional liability insurance coverage available to the Design Professional. Thus, the Design Professional should insist on the deletion of any such guarantee as unreasonable.

Similarly, a Design Professional should insist on the deletion of any proposed language that attempts to establish a fiduciary duty between the Design Professional and the Owner, as such language also results in an increased standard of care owed on the Project. Continue reading “Review of the Owner/Design Professional Agreement from The Design Professional’s Perspective”

The Additional Insured Conundrum: A/E Firms Face a New and Potentially Growing Liability Exposure

By Lynda

So, you’ve scored a new project! This is a shining moment. The road before you vibrates with the potential for creativity and ingenuity. You receive the contract in your email. Double-click. All you have to do is sign on the dotted line. Scroll, scroll, scroll. Insurance Requirements?

Oh boy. You’d better send this one over to your insurance broker for a quick review.

At lunch, you sketch ideas on the back of your napkin, dying to get started. Buzz! Your phone trembles on the table. It’s your broker and, sadly, she didn’t just give you two big thumbs up. Nope. Turns out, the Insurance Requirements include the following line:

Client shall be named as Additional Insured under CG 20 10 (85) or equivalent.

No-can-do. This endorsement is obsolete. But your new client wants it! And so you’re face-to-face with the eternal and confounding Additional Insured Conundrum.

Does this scenario sound familiar to you? You’re not alone. The following excerpt from our October 2013 issue of ProNetwork News may be able to help:

The Issue

Recent court decisions and increasingly onerous client demands are creating substantial insurance related difficulties for design firms. This article will focus on the potentially hazardous and surprising consequences of adding clients and others as additional insureds to the A/E’s general liability insurance (CGL) policy(s).

A recent Illinois Appellate Court Decision illustrates this threat: Patrick Engineering Inc. (Patrick) v. Old Republic General Insurance Co (Old Republic). The basic facts are:

Patrick was retained by Commonwealth Edison (Com Ed) to provide engineering services in connection with relocation of utility poles. While working on the project, Com Ed smashed through an underground sewer in at least four separate locations. Subsequently, the local municipality, Village of Lombard, sued Com Ed alleging that it acted negligently. Continue reading “The Additional Insured Conundrum: A/E Firms Face a New and Potentially Growing Liability Exposure”

ProNet Practice Notes: Is BIM right for you and your project?

By Lynda

Embracing the latest technology can set a design firm apart from the crowd, but it can also set you up for a rough road if you’re not adequately prepared beforehand. Building Information Modeling (BIM) is far from “new” at this point, but some wary design professionals have abstained from it anyway, allowing time to tell whether BIM would be a positive thing for the industry, overall. Good news!

“Building Information Modeling (BIM)… [has] not necessarily opened the door to more claims, as several carriers expected. A few [insurance companies] have found BIM projects to be low-risk; some even went as far as giving discounts to design clients that utilize BIM.” — Engineering, Inc., February 2014

a/e ProNet’s latest ProNet Practice Note, authored by Joseph Barra of Robinson & Cole, can take you from here. The following is an excerpt from Building Information Modeling (BIM): Now that you know how to spell BIM, is it right for you and your firm?

Building Information Modeling (BIM) is the process of developing a virtual, three-dimensional, information rich model to design, construct, and maintain a building project. BIM is much more than software used to produce a pretty 3D graphic. Because a variety of information can be embedded into the model, BIM can also be used to manage the project’s construction schedule (4D); to track project costs (5D); and, once constructed, facility management (6D).

There are varying levels of BIM adoption and use, from an initial pilot project with one player using BIM tools to a team process with agreed-upon collaborative BIM process goals. In ideal process, all project participants share information.

These times are a changin’…

Because BIM is about process and not just software, it gives designers and constructors a unique opportunity to eliminate the barriers to collaborative thinking. One example is found in the redundancies inherent in the shop-drawing process. In this case, the goal of the BIM process is to abolish the wasteful practice of having to draw the entire project twice. Because BIM facilitates teamwork, many see BIM as an opportunity to reach out across disciplines and reconsider the traditional paradigm. Make no mistake, we still need experienced architects, engineers, contractors, and owners to deliver a successful project. But in today’s BIM-enabled world, the process is becoming more collaborative, which in turn redefines the project team’s risk profile.

To continue reading, download the full PDF version of this newsletter, which outlines Factors to Consider before deciding to use BIM (e.g., Type of Project, Timing, Teammates, Project Delivery Method). And if you have additional questions about BIM and/or professional liability insurance, be sure to contact your local a/e ProNet broker today!