Fired From Job - Reuse Of Plans 2

[bookowski]

Maybe this should be in the Ethics forum but I wanted to stick with the structural guys.

I am lucky enough to have been fired from a terrible job. The owner and owner's rep were consistently pushing the contractor to cut corners, build things that were not shown on my drawings, and generally rush the job at the expense of good practice (had a post on here a few weeks back about refusal to get stamped drawings for pre-engineered stair, same job). At some point I started aggressively standing my ground and refusing to give in. They have now decided that it will be easier to just fire me. I think that they believe since they have my drawings I am only in the way at this point. Note that I have not been fully paid for the job - I am at about 50%.

My question is what is my next step with regard to my drawings, legal steps to remove myself from liability, and ethical steps to take to not overly inflate the problem but still due what is expected of me as an engineer. I am very sure that they will still use the drawings as the basis for their construction but modify them as they see fit to save money/time.

What are their rights to my drawings and to build from them? In my mind since I have not been fully paid they do not have ownership of the drawings.

I also want to notify the building department that I am no longer associated with the job and I am not assuming any liability for future work.

Any thoughts?

 

[msquared48]

Definitely notify the building department in writing requesting that you be removed as the engineer of record to relieve yourself of the liability, with a copy to the owner/contractor. The building official should ... (will) be very "interested" that an approved planset was not being followed.

Were there documented and stamped changes too to the original approved drawings that were submitted?

If you have a written contract, depending on what has not been paid, you do have recourse in small claims court to collectr, but that might affect your release from liabliity. Might be better to eat it and just get out of the situation...

Do you want the liability?

Mike McCann
MMC Engineering

http://mmcengineering.tripod.com

 

[bookowski]

I don't care about the money, just removing myself cleanly from the situation.

This is a very odd situation though, it is not even clear that I am the engineer of record. The job was originally filed by an architect. The building department was concerned about this and asked them to have a structural consultant come on board. I then prepared drawings and both myself and the architect stamped them, he was still listed as engineer of record... it's a strange situation that I have never been in. I do plan on notifying the bldg department just to make sure.

How about use of my plans? I want to disavow myself of all design and state that even my plans should not be used. This is a decent sized renovation job and as such details are always changing as site conditions are revealed during demo and construction. As far as I'm concerned no drawings with my name or stamp should be used - is that reasonable?

 

[msquared48]

I question that in that 50% of the fee has been paid. Just cut and run relieving yourself of the liability.

Mike McCann
MMC Engineering

http://mmcengineering.tripod.com

 

[JStephen]

I would think that in the absence of a contract otherwise, they'd be entitled to use the drawings in the state they are now in, and to hire another engineer to revise, update, check, etc., as needed. You might check your state rules and see if they have any guidance about the topic.

I figure if a bricklayer has set half the brick on the job and they fire him, he doesn't get to take his bricks home with him, what is done is done. On the other hand, he's not responsible for what the next guy builds on top of it, either.

 

[Ron]

I agree with Mike's first post. Let the building official know the circumstances.

If the contractor (owner influenced or not) deviates from the approved plans, it violates the provisions of the permit issuance and requires revision of the permit to accommodate the changes (under the IBC and most state codes based on the IBC).

If you signed and sealed plans that were submitted for approval and they are "engineering" in nature, there's a great likelihood that YOU are the engineer of record. In the event of a conflict, the architect will claim that he signed/sealed only for architectural content. Given that it is important that you write the suggested letter to the building official to extract yourself from the EOR position.

As for ownership of the drawings....your contract should clearly state that YOU are the owner of the plans. The owner/developer/contractor only have license to use the plans at your discretion. DON'T give up ownership of documents in your contract unless it is a public agency.....even then, be careful and tighten the conditions of use.

Regarding payment...file a lien NOW. You deserve to be paid for your services. Make that clear to the owner and contractor. Keep in mind that many states have a professional version of the Mechanic's Lien Law that allows the professional to make a lien claim without regard to contractual provisions. Do it!

 

[hokie66]

In matters like this, always listen to Ron. And secondly, listen to Ron.

 

[bookowski]

Thanks to all responses.

My contract does not state that I own the drawings so I'm not sure where that leaves me. My fear is that site conditions change (it's a renovation) or they modify something and then later claim that it was on my drawings. From a matter of principle I also don't like that in their minds they have my drawings at a 50% discount.

As this unfolds (i.e. this morning) it's getting more complicated. I believe that they are avoiding 'officially' firing me on purpose. We were at a standstill over some issues with their quality of work, at the same time they were a month late on payment, this was causing a lot of friction (a lot!). Another member of the design team forwarded me an email that was sent to them (but not me) from the owner's rep that stated 'I have notified the arch. and contractor that 'john smith' (me) is out, we don't need him anymore. Direct any structural questions to the architect and let him figure it out'. They do not respond to my emails or calls - is the above sufficient to consider myself fired and send a letter stating such? They are late with payments, I have an email to a third party stating that 'I am out', other people are now being directed to answer structural questions, and they refuse to reply to correspondence.... to me that seems like sufficient grounds to consider the relationship terminated. I just want to cross my t's and dot the i's because I really really don't trust them.

 

[bpstruct]

I would file the lien and send the letter to the building official, then remove myself from the situation anyway. Who cares if they fire you or not. If they were doing things that were not on my plans, and I was aware of it, I would want to remove myself from the project. In the letter, I would document everything that I knew they did in violation with my plans.

You might not get paid now, but you will save yourself some headaches in the future.

 

[CorBlimeyLimey]

There is much good advice above but, as with all cases where legal implications are concerned, employ the services of a lawyer versed in such legalities.

 

[JAE]

I agree with the above. A couple other points to consider:

1. In most state's PE laws there is minimal, if any, laws that speak directly to the act of "pulling your seal" or stepping down as EOR. If you create a set of plans and put your seal/signature on it, in most US states, that is simply a declaration that you did the work, nothing more. If an entity then has those plans with your seal/signature on them, the best you can do is notify the building official and state that you no longer have authority over engineering decisions, that you signed/sealed the plans but going forward you are not involved in decisions related to structural engineering. That would, at the least, make the building official aware that something's going on and to be more diligent in ensuring that the building design goes ahead with proper oversight.

2. If there are still problems with your plans, then you have a problem in that you already sealed/signed them.

3. I would be very careful about saying anything to the building official or anyone else concerning your previous clients lack of virtue or care in construction. You could get sued for libel.

 

[jwhit]

In regards to ownership of your drawings, check with a Copyright attorney. As a part time photographer, if I sell you an image you only have the right to display it, not to copy it or use it for other purposes without me giving specific license to do so. That license will have use restrictions on it. Since you are in what appears to be a sub-contract situation you may have some recourse under copyright law. Not certain, but worth a look. At the least you should be able to limit their use of your drawings. Maybe in the future it wouldn't be bad to register your work with the Copyright office to protect against these situations. There is a lot more legal recourse if your creations are registered.

 

[rb1957]

clarify the uncertainities ...

are you fired or not ? if you fire yourself do you forfeit your outstanding fee ? maybe an email "reply or i'll consider myself fired"

document everything ... just the facts, when did they "fire" you, get a copy of their email (that makes it sound like you were fired), get this notarised.

file a lien for the outstanding fee ... bear in mind, they might be able to say that you didn't complete the job 'cause they fired you (or you "fired" yourself).

 

[kylesito]

Are there provisions in your agreement for things like Special Inspections? JAE is right and if you go to the building official saying anything about the quality of the contractor/owner or their integrity, it could coome back on you as some kind of defamation suit. However, if you are legally required by the building official to submit a statement of special inspections or something similar then you are entitled to let the building official know you have been removed from the job and will not be completing the required inspections or oversight.

I would add though, if the contractor is directly avoiding your designs and you are not agreeing to his changes, then you will have no liability for what you didn't approve. Hopefully the public safety is not at risk but should anything ever actually happen I would think you have a pretty good arguement that they didn't follow your designs.

PE, SE
Eastern United States

"If a builder builds a house for someone, and does not construct it properly, and the house which he built falls in and kills its owner, then that builder shall be put to death!"
~Code of Hammurabi

 

[msquared48]

Does the language in your contract expressly state under what specific circumstances, and in what manner, the contract can be terminated? If it does, then dot your I's and cross your T's. If not, then...

I agree that with the local variations in the law with respect to these kinds of cases, a few hundred dollars spent with an attorney will go a long way to solving your problem.

Years ago, my attorney told me that unless you filed a lien at the beginning of the job, it would not be effective if you ever needed it, which always seemed funny to me, but I never had cause to verify that. Consequently, I have never put much faith in a contractor's lien. I have had success in Small Claims though.

Here's wishing you well...

Mike McCann
MMC Engineering

http://mmcengineering.tripod.com

 

[spats]

If you feel the contractor is making changes that actually threaten public safety, it is your duty to report them to the state licensing board. Fear of reprisal is not a good excuse if it somehow comes to light that you knew about unsafe practices and did not report them.

I don't know the laws in your state, but here in Florida you can file a lien at any time. There is no time limit on filing a lien for professional services. Subs, etc. normally have to file within 90 days if they don't get paid. When you file the lien and record it in the county courthouse, the owner will get a copy. Usually they'll pay up just to make you go away.

 

[grantstructure]

In my city, they Certificate of Occupancy is contingent upon a final report of Special Inspection stating that all issues have been resolved. I had a project just last month in which I had to notify the city inspector that I was aware of outstanding issues, and that they needed to be resolved prior to the C of O, and told him what they were.

Ultimately that gave me leverage to force the contractor to address those issues, and I refused to give the contractor my final report until I had my check in hand. Very unpleasant, but I'm not sure you have a way of extracting yourself from liability once you're involved. That is; if there's a problem, you'll get sued, even if the issue occurred after they brought in another engineer or inspector, and you'll have to spend money proving that you're not at fault. Even if you get dropped from the case, it won't be free.

I'm pretty sure that even if you put a copyright statement on your drawings, that doesn't mean you can yank them from the project once they have been issued. What the copyright means is that they cannot re-use or duplicate parts of your drawings for other uses.

As much as it's stressful and not fair to you, you should remain involved in the project and responsive. Write down everything now, archive everything, dates, phone conversations. Get ready now like it's going to be a lawsuit, and do everything you can to avoid any fault. Depending on the ethical rules of your state, you can be liable for abandoning the project--and if you haven't been officially fired, if you walk away, that's how it would look to a jury.

Sorry you're in such a terrible spot. I imagine lots of us can relate. Hang in there!

 

[JLNJ]

Without the ability to review shop drawings, design mixes, special inspection reports and make site visits, I don't believe you can fulfill your EOR duties.

That's how I wrote it up when we had a project in Indiana go down the toilet. We sent the letter to the building official and let him sort it out with the Owner/Contractor.

You can't back out just because you are guessing that you won't get paid. Hold the line on your recommendations. Maybe you can set up an off-the-record meeting with the building official and see what he recommends. He might well be in your corner.

 

[bookowski]

Thanks for all the responses - will attempt to answer some of them here.

I do not believe that anything at this point has been done that jeopardizes safety, so I there is no current obligation about present/past work that was done. There has been continuous friction and pressure but nothing that I haven't dealt with on previous jobs. The first big standoff occurred over pre-engineered stairs. I insisted that they be stamped (per my drawing notes) and they didn't want to pay for that. After rejecting them twice I found out that they were building them anyway. I sent out a memo stating my objection and that this was not approved. This was met with lots of yelling but they gave in and had the drawings stamped. The 2nd and final instance occurred when I spoke to the special inspector and told him several items to look out for that I was concerned about. The owner's rep called me and went on a tirade using a lot of language that would make a sailor cringe. He was stating that it was none of my business what the special inspector was willing to sign off on. As angry as he was this was a clear indication to me that his intent was to have things get signed off that I would not agree with.

At that point I still did not consider myself off the job, I just figured I would have to deal with it. After no further communication for several days I sent inquiry emails about late payments and the status of some unresolved question and had no response. I sent follow up emails, the only response eventually came stating that they were not paying me because they felt there 'were problems with the documents that I produced and they would have to 'analyze' them for a while'. I asked for clarification and stated that if the drawings were flawed to please provide specifics and not use the drawings until they were resolved. No more responses to that or another follow up email. A day later I received an email forward from someone else on the design team (I had been purposely excluded), this email informed the design team and contractor to exclude me from future questions/communications and stated that as of now I 'was out' and unnecessary. I actually emailed again letting them know that I had this email information and asked them to confirm how we were moving forward, again no response.

I am really not that interested in the money at this point. It would be nice but it is small compared to the stress. My concern is what JLNJ stated above - that without the ability to review shop drawings, inspection reports, changes/site conditions etc. etc. I am not able to act as engineer on the job. If it is not completely (and legally) clear that I am no longer associated with the work and something goes wrong down the line I know that they will say I was never officially fired and it's on me. At the same time I do not want to say that I quit unless I am sure that this is defensible based on the above info, again I worry that they will try and hit me with some type of case for delay of work or expense of another engineer etc. It seems to me that beyond being childish, the refusal to respond to correspondence must at some point strengthen a case for valid termination of the contract. At this point I just want to be free of it and sleep at night.

My plan is to talk to a building official.

Thanks for all the input. There is clearly not one right answer for this. Biggest lesson learned for me is that I when I first got into this project I had strong questions about the integrity and honesty of the client but went into it anyway. Lesson learned.

 

[hokie66]

When you lie down with dogs...Glad you learned that lesson.