Standard of Care 3

[XR250]

I got an email from one of my competitors wanting to get together the small, local structural engineering firms to create a "Standard of Care" for residential jobs.
Ironically, I was thinking the same thing a few weeks before after a client declared they may file a claim with my PL provider.
Would this be considered collusion if we did, in fact, create a written standard of care?

What would happen if one of the firms exceeded the standard of care? Would that raise the standard of care?

Any thoughts would be appreciated.

 

[canwesteng]

What is this suppose to achieve anyway? The court is going to decide what a professional standard of care is, not a group of local engineers.

 

[MrHershey]

I'm with canwesteng. I don't know that it really changes anything, would need to be much more broadly adopted than two small firms.

Would also check with your PL provider before you do anything. My gut feel is they probably won't be fans of trying to define your own 'standard of care'.

 

[Compositepro]

Is this not what the building code is? A pretty detailed minimum standard. How would a standard of care be different? Also, I don't know how a court would set this except by looking at what other local engineers do.

 

[Ron]

Your standard of care is already defined....DO NOT ATTEMPT TO REDEFINE IT BASED ON THE OPINION OF A FEW ENGINEERS!!!

Your standard of care is this:

That level of service ordinarily provided by other competent members of our
profession, providing similar services in the same locale and under the same or
similar circumstances.

This is accepted in the courts and is reasonable. The keys to this are "ordinarily provided", "competent members", "similar services", "same locale" and "similar circumstances".

If you attempt to define something further, you will likely paint yourselves into a corner that you don't want to be in.

 

[msquared48]

Who sells the paint to you Ron?

Oh, let me guess... lawyers and clients...

Mike McCann, PE, SE (WA)

 

[msquared48]

Funny thing though... the AMA's "standard of care" does not allow doctors to treat "out of the box" when normal medicine does not work. Those who cross the line of the standard of care take a huge risk, but extend the borders of successful medicine with success and time.

Mike McCann, PE, SE (WA)

 

[Ron]

Who sells the paint to you Ron?

Oh, let me guess... lawyers and clients...

Exactly right , Mike!

 

[XR250]

Your standard of care is already defined....DO NOT ATTEMPT TO REDEFINE IT BASED ON THE OPINION OF A FEW ENGINEERS!!!

Your standard of care is this:

That level of service ordinarily provided by other competent members of our
profession, providing similar services in the same locale and under the same or
similar circumstances.

This is accepted in the courts and is reasonable. The keys to this are "ordinarily provided", "competent members", "similar services", "same locale" and "similar circumstances".

If you attempt to define something further, you will likely paint yourselves into a corner that you don't want to be in.

I was hoping you would chime in, Ron. How is a court to determine this? If the plaintiff has a hired gun, how is he to know what is customary in our locale?
Realistically, the only people who know what is customary is those who actually practice in the geographic area.
FWIW, it would likely be about 6 firms involved who do the majority of the residential work in our area.

 

[MrHershey]

How is a court to determine this? If the plaintiff has a hired gun, how is he to know what is customary in our locale?

For one, most of the time these things go to arbitration or mediation first. Should look into getting this in your contracts if it's not there already. There the arbitrator or mediator typically has a fairly significant amount of experience in the construction field (American Arbitration Association requires 10 years I think). They should have a decent idea of what's standard. And they're supposed to be neutral, not a hired gun. If they're not then you, your attorney, and your insurance company need to raise a huge stink immediately.

Secondly, since I assume they're making a claim against your PL, then your insurance company is going to do most of the fighting here. The plaintiff will have their hired gun come in as a witness, your insurance company will have their hired gun come in and refute everything the plaintiff's guy says, and then the arbitrator or judge will get to decide who's most wrong and divvy up the awards accordingly. Then the lawyers take their cut of the award money and everyone else walks away unhappy.

And Ron has an excellent point here on painting yourself into a corner. Think it's important to recognize that the courts/arbitrators will very likely keep their own definition of 'standard of care'. It's a legal interpretation, you can offer up your own to try and influence their decision but the courts/arbitrators are still going to use their own judgement. So in general developing your own standard of care won't change anything. Except in one instance: when the standard of care you develop is higher than what the court's interpretation would be. In that case you would be unnecessarily exposing yourself by setting a higher than legally required standard for yourself. This area is actually pretty well developed in terms of warranties or guarantees, which are very much above and beyond the standard of care. Engineers who make them are still on the hook for them even though they're generally understood to be above and beyond the standard of care. Since PL insurance is generally predicated on the standard of care, that also means warranties and guarantees are generally not covered. If whatever you come up with exceeds the legal standard of care, then I would imagine you would similarly not be covered. Would again recommend talking to your PL provider (and attorney) before doing anything. If they tell you it's a bad idea or that they won't back you up, be very wary about moving forward.

Note: Above should not be considered legal advice.

 

[XR250]

Thanks Mr.H. Makes a lot of sense. I may share this with the others.

 

[JAE]

...your insurance company will have their hired gun come in and refute everything the plaintiff's guy says...

This is correct in my view.
This is the mechanism where each side argues, and sometimes provides proof, of what other engineers would reasonably do. There's not a document out there that does this.

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[msquared48]

And even when they cannot punch a hole in your engineering, the other side will delay, delay, delay to break the bank of your client.

Dirty pool in my opinion. Definitely not justice.

Mike McCann, PE, SE (WA)

 

[Ron]

The language I gave has been propounded by the major engineering societies for many years and the courts have upheld this many times over. It is also a result of interaction with the major professional liability insurers.

Proving that you did or did not follow the standard of care is not that difficult. It can usually be done with affidavits from a couple of local engineers who have reviewed your work and can offer an opinion. Engineers brought in from outside the area are often not effective in arguing a local standard of care, unless the work is more universal, such as structural design under a commonly accepted code. This sort of argument almost never makes it to a jury....it is handled by negotiation through mediation or arbitration as mentioned. If it gets carried through the litigation process it is often a subject of a motion for summary judgment, which is a decision made by a judge and they clearly understand standards of care.

Sometimes the standard of care is much lower than you might expect. I've seen cases where local practice was so loosey goosey it would be almost impossible to tag one with a standard of care breach.

 

[XR250]

Sometimes the standard of care is much lower than you might expect. I've seen cases where local practice was so loosey goosey it would be almost impossible to tag one with a standard of care breach.

There a few of those in our area for sure.

Thanks for your advice.

 

[Terratek]

Just be careful you don't get implicated in a price fixing collusion issue when meeting with competitors about how to do business.