Now that we have grabbed your undivided attention, the purpose of this article is to alert Design Professionals to an alarming trend. This trend involves the inclusion of contract provisions in agreements prepared by Owners/Developers and their attorneys that force a Design Professional to work for free in the event that the Owner/Developer unilaterally determines that there is a “dispute.”
Overview
It goes without saying that every contract, especially in the design field, must be read thoroughly before it is signed, or the signer will be stuck with the ramifications. Generally speaking, the clauses in question here state that in the event of any dispute between the Owner/Developer and Design Professional, the Owner/Developer may withhold payment until the dispute is resolved, but the Design Professional must continue to perform services. This upsets the historical balance of power between the Owner/Developer and the Design Professional and creates a situation where the Design Professional may very well end up working for free or else be faced with being sued if they stop work or suspend services. Continue reading “How to Get a Design Professional to Work For Free!”
The March 2013 issue of ProNetwork Newsis the second installment of a two-part article; the author, Tim Corbett of SmartRiskexplains the origins and principles of project coverage and introduces the reader to two of the four main types of Project Insurance. For a recap of the first part, including details about types 1 (Project Professional Liability Insurance) and 2 (IPD Project Specific Insurance), download the full March issue, or, better yet,download the February 2013 newsletter here.
Now, let’s examine the remaining three types of project coverage.
3. Project Specific Insurance Limits
Sometimes, contracts demand that design professionals carry a higher limit than they usually do. This can occur on any kind of project, but is more common on larger, higher risk projects, and more recently, on public ones. One of the more common strategies for obtaining increased limits for a project is through a Project Specific Insurance Limit. This is provided by endorsement through your current practice policy insurance carrier.
Benefits and typical features of Project Specific Insurance Limits:
Provides a higher limit for the firm, for a specific project only.
Can be more cost effective than raising the limits on the entire practice policy.
Makes the cost of the project-specific limit a reimbursable expense.
Cautionary Points and Tactics:
Having a project specific increased limit may not always be the best strategy, and it may not even be available from your practice policy carrier. From an insurance company’s perspective, comparing construction costs to policy limits is part of the underwriting process. Construction value and requested limits may not be in line with the insurer’s potential exposure: those higher limits requested could place a target on the design firm’s back. The insurer doesn’t want to provide the higher limits that could be used as a cost recovery strategy.
Ensure that requested limits are in line with exposures and construction costs. For example, is it necessary to require a $5 million limit of professional liability insurance from a firm performing services on a $20 million project?
Contact the contract administrator, and state that your firm normally carries a lower professional liability limit than requested, and that it is consistent with industry practice. Inquire if your current limit will be acceptable.
* Include language similar to the following in your contract:
“The expense of any additional insurance coverage or limits requested by the Owner in excess of that normally carried by the firm shall be a reimbursable expense paid by the Owner.”
To find out more about types 4 (The Wrap-Up Policy) and 5 (Owner Protective Insurance Policy or OPIP), download the full March 2013 issue from our website.
About the Author: Timothy (Tim) Corbett is Founder and President of SmartRisk, a Pasadena, CA based consultancy with over 25 years of experience providing risk management and performance management solutions to Design and Building Professionals. Mr. Corbett holds a BS Degree in Security & Risk Management, MS Degree in Management; a degree in Environmental studies as well as concentrated studies in Architecture Design and is LEED accredited. For more information on this or other topics, visit the SmartRisk website or email Tim at tcorbett@smartrisk.biz.
Photo via Victor O. Schinnerer’s War Stories: Budget Buster
I shouldn’t need to buy insurance! I’ve never had a claim.
This is a common refrain from architects and engineers purchasing professional liability insurance for the first time. We hear you. There are lots of design professionals who feel this way. That’s why it’s important to recognize that insurance isn’t about punishing you for past claims; it’s about protecting you from future claims. Contractual insurance requirements aren’t merely expensive obstacles to bidding for a job; they’re supposed to protect the individual parties from the far more expensive burden of an uninsured professional liability claim. And, like it or not, industries like Architecture and Engineering are rife with potential claims.
Oh yeah? Like what?
Don’t just take our word for it. Check out this library of War Stories and Claims Scenarios from Architects, Engineers, Surveyors & Consultants, an excellent resource offered by Victor O. Schinnerer, one of the leading Professional Liability insurance companies. These are real life claims stories. Here you can read through scenarios which happened to other firms, often in spite of their best efforts to avoid such things! While the names have been changed, details are included. In each case, you’ll find out what the mistake was. How it was made. How much it ultimately cost. How it could have been avoided.
A couple of examples from the War Stories library:
ABC Engineers provided design services for a residential project. The owner obtained a construction loan from a bank for $2.7 million; believing he could obtain additional funds from the bank if needed. As construction progressed, they expended the $2.7 million budget before the project was complete. The bank believed $2.7 million was adequate to complete the project and denied the owner’s request for an additional $1.3 million. The owner could not obtain additional funds and the contractors stopped working, leaving the project incomplete. Read more at Schinnerer’s website…
Gerard Coins Architecture, a sole proprietor, was retained by a housing authority to provide architectural design for Blanket Apartments, a low income housing development. Gerard Coins Architecture also provided mechanical design, which was permitted by state law. The architect’s design called for standard, 30 gallon water heaters but the owner wanted electric, tankless water heaters instead. The architect checked with a supplier and based on verbal information, sized the water heaters for the apartment units.
After the apartments were built, it was discovered that the water heaters did not supply enough hot water. The architect contacted the water heater manufacturer who told him the water heaters were intended to be used at a source, such as a sink or bathtub—not to heat the water for an entire apartment. Read more at Schinnerer’s website…
Homer Watkins Engineering, a civil engineering firm, was retained to provide a limited inspection and design report for a historic building. Several years later, they provided an inspection report for the sale of the same building.
A painting contractor employee, who was working on the historic building, fell three stories sustaining serious injuries after the railing collapsed on a balcony he leaned against. The painting contractor employee filed suit claiming he was permanently, partially disabled and disfigured. After filing suit against a number of parties, Homer Watkins Engineering’s inspection report was found during discovery and the suit was amended to add them.
The painting contractor employee contended that while Homer Watkins Engineering’s inspection report put the new owner on notice that the railing was too low and posed a safety hazard, it did not go far enough in warning the owner that it should be fixed immediately. While it was felt the height of the railing had nothing to do with the fall, the defense counsel felt the inspection report should have been more detailed as it was dealing with a very old brick and wood building that may have had weaknesses requiring more investigation. Read more at Schinnerer’s website…
Protect yourself and your firm from situations like these by purchasing a Professional Liability policy tailored to the specific needs of design professionals. Our members are specialists in this field, so find and contact your local a/e ProNet broker today.
The February 2013 issue of ProNetwork News is the first installment of a two-part article; the author, Tim Corbett of SmartRisk explains the origins and principles of project coverage and introduces the reader to two of the four main types of Project Insurance.
Project insurance for design professionals was initially established to provide higher, dedicated limits for larger and more complex projects. The other main driving force behind the development of project coverage was to provide owners the security of having project specific limits both during and after the project was complete. Project insurance has evolved and continues to change based on market needs and conditions, as well as insurance company underwriting standards and “appetite,” or the desire to write certain kinds of risks.
More recently, the collaborative project delivery method sometimes referred to as the integrated delivery (ID) or integrated project delivery (IPD) process has impacted project insurance. In IPD, design professionals are no longer the sole authors of the project design: greater contributions are provided by other entities, including the general contractor and the major trade subcontractors. A few select insurance companies have begun to offer project specific policies tailored to the methods and exposures of IPD.
The key to selecting the correct coverage is theoretically simple: match the benefits of the insurance with the entity or entities requiring the protection. Will one option meet that goal? That’s a very good question: you may need a combination of alternatives to accomplish your insurance and risk management objectives. You should also be aware that even obtaining project insurance has been a challenge in the past, and continues to be so today. Continue reading “Project Insurance: Benefits and Cautions – Part 1 of 2”
Partnering with aecKnowledge, one of the nation’s premiere sources of relevant and practical online continuing education for design professionals, a/e ProNet has sponsored a new video series on Project Delivery Methods.
This 5-part series is the culmination of a decade-long look at the exploration and evolution of alternative methods of project delivery. It will help you in your efforts to advise owners on making informed decisions about which project delivery option is most appropriate for each project. Choosing the most appropriate method helps align stakeholders’ goals relative to quality, schedule and cost control, decision-making and risk management, and leverages the skills, knowledge and resources available to each team member. Click here to watch a preview of this series, at no charge.
You will also earn 5 HSW Learning Units and, if you are an AIA member, your AIA credits will be automatically reported after you complete each course.
Purchase the courses in this series following these steps:
1. Register on the aecKnowledge website
2. Go to the Continuing Education module
3. On the right hand side, you will see Suggested Curricula. Click on Project Delivery.
4. Proceed to purchase each of the five courses.
If your insurance broker is a member of a/e ProNet, you are entitled to a 20% discount off of the lowest course prices available to anyone else. Contact your a/e ProNet broker today for the discount code.
Whether you are an architect, engineer, contractor, specialty consultant, owner, CM or advisor, these courses will enable you to make informed decisions about which project delivery method will best achieve your goals and, ultimately, create a better built environment. On behalf of a/e ProNet, we hope you find the Project Delivery Methods video series valuable.
One way a/e ProNet supports the design community is by promoting continuing education for Architects and Engineers.
Mark Cavagnero, FAIA, discussing marketing strategies specific to small, growing firms with panelists Cass Calder Smith, AIA, and Melissa Werner from CCS Architecture, Sam Fajner from TEECOM and Sylvia Kwan, FAIA, from Kwan Henmi Architecture Planning, Inc.
aecKnowledge, in collaboration with AIA San Francisco and Mark Cavagnero, FAIA, has created an exciting new online series called “Growing a Small Firm”. This set of talks provides targeted advice to design professionals who have recently branched out on their own or are considering starting their own firms. Each panel discussion, filmed live at AIA San Francisco and moderated by Mark Cavagnero, features some of the Bay Area’s leading design professionals, contractors and owners generously sharing valuable insights gained from decades of experience. Among the topics:
Developing effective marketing and diversification strategies
Developing a clear, distinctive identity
Pursuing public design opportunities
Cultivating repeat clients
Teaming with larger firms
Elevating the role of women
Collaborating with other design and construction professionals
This course delivers targeted advice on marketing and business development and captures decades of insights into how best to meet potential clients, expand a firm’s portfolio, implement a vibrant marketing program on a limited budget, create an identity that resonates with prospective clients, and successfully collaborate with larger firms and allied professionals in the pursuit of widely sought-after commissions.
“Architecture firms continued to report improving business conditions in December, with an Architecture Billings Index (ABI) score of 52.0. (Any score above 50 represents billings growth). While the pace of billings growth slowed slightly from November, it is still the fifth consecutive month of growth, which means eight months of 2012 showed improving business conditions, the most in one calendar year since 2007. Inquiries into new projects remained strong, and firm backlogs for the fourth quarter inched up slightly from the third quarter to an average of 4.5 months.
Business conditions continued to improve at firms in all regions of the country in December with the exception of firms in the West, which continued to struggle to recover from nearly five years of declining billings. Firms located in the Midwest reported particularly strong firm billings last month after suffering a period of softness in the middle of the year. And for the third consecutive month, firms of all specializations reported experiencing increasing firm billings. The pace of growth has slowed significantly from the middle of the year for firms with a residential specialization, but continues to improve for firms with a commercial/industrial specialization.”
One of the many value added resources a/e ProNet brokers offer is access to our ProNet Practice Notes, in-depth white papers prepared by members of a wide variety of professions related to the design industry. They offer insight and advice on topics like risk management, practice management, and litigation issues for Architects, Engineers, and other Design Professionals.
While money isn’t everything, it is the measure and fuel of any business, including a design firm. Without payment for services firms suffer, starve, and even die. Payment issues are also often the single greatest warning sign of a project in trouble.
Perhaps there is no greater indicator of the correlation between unpaid fees and troubled projects and relationships than the remarkable frequency with which efforts of design professionals to collect unpaid fees through litigation result in even larger responsive counter-claims from clients alleging professional negligence. 2011 gave the entire industry the most dramatic and alarming example of this pattern. Having already received over $8.2M in fees, the engineering firm Carter & Burgess sued its client the City of Victorville in Southern California for the final $106,196 on a power plant project that the City had been forced to partially abandon mid-project due to cost overruns. The City responded with a counter-claim for professional negligence. When the verdict came in 2011, it was devastating financially and professionally as news, industry, and internet sources widely reported and publicized the award of $52.1M in damages against the engineering firm.
The results of such a counter-claim need not be as dramatic in terms of publicity or financial losses to be devastating to the firm. In addition to the unpaid fees, there are many other impacts of even a “defensive” counter-claim. They frequently include:
Deductible payments for legal fees and costs, which may even include the involvement of a second “defense” attorney.
Insurance impacts for rating, pricing, and loss history.
Lost internal time and resources for purposes of participation in defense.
Publicity and required disclosures in future responses to RFPs for claims history.
Potential uninsured exposure for prevailing party attorneys’ fees if negligence claims exceed fee claims.
Ultimate discounted or waived fees for expediency of resolving and closing claim.
Obviously, avoiding such collection challenges and the potential for responsive claims is critical to good business and project success.
In reality, a proper approach to collections closely resembles a proper regimen for personal health. Firms which get paid become and remain healthy and strong. Firms which do not get paid regularly and on time become malnourished and increasingly susceptible to disease. Just as health is a life-long process, financial success is a project-long process. The following discussion tracks the relevant phases and provides analyses and strategies for those various phases. Those phases are: Continue reading “{ProNet Practice Note} The Collections-Claim Connection: Getting Paid Without Getting Sued”
It is no secret that in the current economic environment, it can be difficult to find projects, and the problem may not end there. It can be even more difficult to secure prompt payment from your client. Sometimes, it is difficult to secure payment at all.
There are certain statutory protections for architects in many states: design professionals’ liens for certain projects and mechanics’ liens for others. But like other legal remedies, statutory protections require timely legal action, and the legal fight can be both financially and personally arduous.
Most of the time, architects and other design professionals have one potential weapon in their arsenals that no one else on the project can bring to the unpaid fees fight: the ability to control the use of their work product through copyright protection. As long as the work product meets certain statutory requirements and their rights are not otherwise waived, design professionals own a copyright by authorship alone. Additionally, registering the copyright with the U.S. Copyright Office entitles the copyright owner to additional statutory damages and attorneys’ fees in any ensuing infringement action.
Copyright is an underutilized tactic in the fee collection “gun fight.” On a project where construction had been in full progress but is stalled because no one – design professionals, project manager, general, and subcontractors – has been paid by the owner, the standard litigation tactic is to sue for breach of contract and file an action for foreclosure on any lien rights. But what if the owner is also in default on its construction loan? Continue reading “Shootout At The Copyright Corral”
