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Professional Liability
3

Professional Liability

Professional Liability

(OP)
Does anyone know the assumed liability if I am listed as a registered PE for a company according to the TBPE? I am not sealing drawings or performing engineering really.  
I figured if I was listed according to the TBPE that i would been seen as liable until proven (likely expensively) otherwise.  My company has E&O insurance so I am covered on that front.  Another concern is that I am employed on a contract basis as a drafter with minimal engineering effort (yes the economy is that bad) and certainly do have not oversight of designs that are issued. Should I have more say in the design if I am listed (or regardless of my status according to TBPE) and should I request higher pay for the use of my PE number even though I am not sealing drawings.  They are afterall advertising there is a PE on staff.  

RE: Professional Liability

Yes, you do. At least make sure your are named in your companies E&O policy as one of the insured.

If I were you, I would ask your employer as to why are you named if you are not their regular employee or even hired as an engineer.

I would stay away from such employers, to tell you the truth.

 

Rafiq Bulsara
http://www.srengineersct.com

RE: Professional Liability

If you are just an employee where the ownes are PE's and are sealing the work, then I wouldn't think there should be a problem.

If you are the only PE on staff and they are doing any work that can be considered engineering, then you should be concerned.  You could be thrown under the bus if any problems develop.  What kind of work does the company do?

RE: Professional Liability

If you are explicitly named on your employers policy then you are financially protected from litigation costs, but NOTHING can protect you personally from going to jail if your company does something that meets the standards for criminal negligence.  It doesn't matter who violated the law if your stamp is on the drawings/reports then you get to join them in the criminal prosecution.

Yeah, if you are going to stamp anything you have a right to expect more than drafters wages.  

If you never stamp anything or represent to a client that either you did the engineering or it was done under your responsible charge then you are probably safe.  If you have business cards you probably should be careful not to include the P.E. after your name (handing out a card with P.E. on it has been seen by courts as "holding yourself out to the public" as an engineer).  As long as your duties are limited to drafting I wouldn't risk that liability.

David

RE: Professional Liability

If you are one of the listed "qualifiers" for your company, you bear responsibility for the company's actions.  As others noted, make sure you are covered by the E&O policy and that the company specifically indemnifies you for your actions on their behalf.  That will not prevent you from being sued individually, it just provides defense if you do...you could still lose YOUR assets as a result.

I agree completely with zdas04....if you are going to assume that level of responsibility, you should be compensated accordingly.  

Also, for small companies, the usual requirement is that any listed qualifiers be officers of the company.  Are you?

RE: Professional Liability

I would have thought that a PE, whether listed or paid as one or not, has a general duty of care regarding designs he works on exceeding that of a normal draftie, and can't really be a little bit pregnant.




 

Cheers

Greg Locock

SIG:Please see FAQ731-376: Eng-Tips.com Forum Policies for tips on how to make the best use of Eng-Tips.

RE: Professional Liability

I once knew a medical doctor who retired and started working as a groundskeeper at a golf course.  The fact that he was an MD did not impact his responsibilities or liabilities as a groundskeeper.  Same for a draftsman.  If his responsibilities are confined to executing drawings at the direction of others then the fact that he is a P.E. is immaterial.  If he then turns around and stamps the drawings that he drafted then that is a different kettle of Cod.

David

RE: Professional Liability

David...the groundskeeper and Doctor are widely separated.  Not so for the draftsman and engineer. If there were an issue with a design, it could probably be argued that a draftsman with an engineering license had a greater duty than a draftsman without an engineering license and was either responsible for the errant design or should have prevented the errant design.

Greg...you're exactly right...the professional duty is still there, without regard to corporate standing.  That's why in my home state, engineers are personally liable as well as the corporation and they can be sued separately and are regulated separately.

RE: Professional Liability

I've talked to a lot of draftsman who felt like the gulf between engineer and draftsman was at least as deep and wide as the gulf between doctor and groundskeeper--the stories of draftsmen being chewed out and even losing their jobs for questioning an engineering design are legion.  It may not be right, but it is real.  

The few times I've used a draftsman I was very upset by the "minor tweaks" that they made without supporting calculations.  I did find one guy that would draw my design exactly and then stick post-it notes on the drawing showing where improvements might be made.  I didn't find that approach threatening and often found that the calculations supported the guys recommendations and I changed the design, but at the end of the day responsibility and liability for the design was solely mine.

David

RE: Professional Liability

(OP)
I work for a small company that provides service to small oil and gas companies around the US.  The work includes renovations to existing service as well as new services.  My responsibilities include drafting (primarily) and engineering as directed.  I do not engineer all items that I feel should be engineered or reviewed by an engineer.  I have several concerns.  

First, I am the only structural engineer, let alone PE, on staff. My direct supervisor does not have an engineering degree and certainly not a license.  He has the last say in designs that are issued. My company does not typically issue signed and sealed drawings.  Furthermore, the connection design in its entirity (moment or pin; welded or bolted, etc.) is left to the contractor as per the specifications.  

I agree, my duty as a professional engineer includes stepping outside the company's expectations for my input on design.  It seems, therefore, I should be listed on the E&O policy as long as I am employed here.  As for my responsibilities, I need to discuss this with my supervisor and express my opinion regarding my involvement with the design process.   

What do you mean by qualifier? I do not understand why the company would list me as a licensed engineer if I am not being utilized as a PE.  That is probably a question for my company.    

Thank you for your input.  It has helped guide me and hopefully protect the license I worked so hard to earn.  

RE: Professional Liability

If you are the only PE on staff, and that is being used as PE qualification of your company (which clearly is the case) and  if you do not have final say in the design, I would either straighten it out with your employer or quit the job, even if you have to wait on restaurant tables instead.

I have a feeling as soon as you mention to your employer how some your name is listed as a company PE, a lot of things would change, perhaps for good or perhaps for bad.

I have read some where else that some employer was using one the employees' name as the "manager" or the decision maker in an LLC without his knowledge and that guy ended up in a lot of legal trouble because of some shady operations of the owner. You do not want to be in that position.

 

Rafiq Bulsara
http://www.srengineersct.com

RE: Professional Liability

(OP)
They requested my PE number, but I explained I am a contract employee and I am not employeed as an engineer rather a designer.  I refused to be listed as part of the PE qualifications.  I am relieved to see it was probably the correct thing to do.  

However, I feel I still need to discuss the fact I am the only PE on staff and do not have the final say on designs that are issued - that I have worked on. It seems an ultimatum that I have the final say as the PE or I can no longer work here. Unless my fear of my liability is too extreme.

Is there a way to research whether I am listed or not? Should it be on my board's website?

RE: Professional Liability

Ultimatums are so pointless.  If you are being paid as a non-engineer "designer" and never stamp anything and never hold yourself out as an "engineer" then the status quo should be fine for you.  If you ever step an inch over that line (e.g., calculate a beam stress or stamp a company drawing) then you have messed up and are accepting considerable liability without commiserate rewards--that is when the ultimatum needs to be issued.

Draftsmen/designers NEVER have the final say on a design, if you can't live with that then get your status changed or go somewhere else.
 

David Simpson, PE
MuleShoe Engineering
www.muleshoe-eng.com
Please see FAQ731-376: Eng-Tips.com Forum Policies for tips on how to make the best use of Eng-Tips Fora.

"Life if nature's way of preserving meat"  The Master on Dr. Who

RE: Professional Liability

(OP)
No I would not expect to have say as a designer.  However, I have performed calculations and been asked to review designs.  I am the only PE on staff though not listed as the qualfier per my board nor have I sealed any designs.  I was unsure of my liability in such a gray area.   

RE: Professional Liability

Like the classic TV commercial says "you've been hosed Tommy".  If you have been "Checking" and "Calculating" then you can bet that your boss has been saying "Our Engineer is responsible for this design".

If you didn't have your P.E. then we wouldn't be having this conversation (the industrial exemption provides adequate protection for Engineers that can work under it).  The problem is that with your P.E. if you (or your boss) are holding yourself out to be doing Engineering and nothing sheilds you from that liability.

David

RE: Professional Liability

Regardless of what you do or you thin you do or get paid, as zdas4 said, if your boss is selling you as a PE on his staff, you are and will held liable and you will have tough time not proving it. Besides proving one right or wrong is not based on the facts but the ability of a lawyer convincing someone.

Look for some other better employer.

Rafiq Bulsara
http://www.srengineersct.com

RE: Professional Liability

TXPE....in some states, and I haven't reviewed the Texas law, you are REQUIRED to state, in writing, if an unqualified lay person overrules your design.  You might want to check into this as your boss seems to fit this description.  Your letter must go to the individual and in some cases, for a public project for instance, it must be copied to your state board.

RE: Professional Liability

I think you are dealing with a couple of issues here,

1. Contractually you are hired as a draftsman, so under contract you do not have to provide engineering services only drafting services.

2. However, as a PE you are considered an expert in whatever you have been licensed for.  A draftsman although well versed in design may not be considered an expert under the law.

3. Under Common Law being an expert in design I believe you are required under "Duty to Warn" if there is a flaw or a defect in the design to warn owners and others.

For instance if they tell you to draw some kind of bracket that you know will hold 10,000lbs and you know just from looking at it that it will not work you have a Duty to Warn.

RE: Professional Liability

MaddEngineer is correct on the Duty to Warn.  He said it better than I did!

RE: Professional Liability

(OP)
my company recognizes me on an "as used" basis.  If I engineer something, I go on record as EOR.  

MaddEningeer - I am contracted as a designer though my responsibilities include performing engineering work (including design and review of other's eng work) thus creating gray area.  Part of my concern is the lack of engineering that is done.  For example, all the connection designs are to be provided by the contractor building the job or as determined by the owner.  Is it sufficient to require the connection be designed to develop the full capacity of the connecting members?

Also, there is a concern with the fact I am performing engineering work and my supervisor is not a PE.  Does the liability for the design become mine? The obvious case where the design is insufficient is clear cut.

Agreed, it is generally comes down to having a good lawyer.  Are there steps (aside from not being represneted as a PE by the company) I can/should take in order to continue to perform engineering duties while working for someone who is not a PE and has authority over all structural design? Or, is it a mistake wto ork as such?

I may be making a mountain out of a mole hill, but I have been through a lawsuit and know how expensive and strenuous they can be.  It is worth it to stress now and make proactive decisions when I understand the implications.  

RE: Professional Liability

The liability for the design, if you sign/seal it is yours.  You might still incur liability for a design if you have a Duty to Warn and do not do so, as MaddEngineer pointed out.

The best way to protect yourself is to have a contract with your employer and have a clause in there limiting your liability and an indemnification clause that covers you in the event of a claim, that requires the company to pick up any liability you incur.

Short of that, get your own professional liability insurance.

RE: Professional Liability

It sounds like you are hired as an independent contractor NOT an employee.  Is this correct.

If this is correct then (from my understanding) technically you are not being directly supervised but you are providing a consulting or drafting service for your client.

I believe, however, even if you are considered an employee under your current corporate hierarchy, you may still be considered an independent contractor from a professional liability standpoint. For example most states regulate what companies may provide professional engineering services and those companies typically must have a PE (or only Design Professionals) as an officer.  So if your company is not licensed to provide engineering services then technically you are working as a independent contractor since only you are licensed as an individual to provide professional engineering services.  Now I believe the laws are different in manufacturing if you company is providing proprietary equipment, but, I believe it must be tested under rigorous procedures and not be a one-off design.

Now you also say you are the engineer of record (EOR) and defer connection design to others.  However, as EOR you still may be responsible to review the design by others for suitability for use. (I'm not a lawyer, but, you probably should be named on your companies E&O policy if they do have one, if not they should get one).

RE: Professional Liability

(OP)
I am hired as a contractor from company A so I am not a direct hire of the company (B) I am providing services for.  

As for Texas, in order to provide engineering services you must be registered with the TBPE.  In order to be registered you must have at least one full time engineer ons staff.  The company (B) I am consulting to is registered and has 3 PEs (though no structural) on staff that qualify the company to be registered.  They are officers.

I am engineer of record on anything I design.  I do review some of the designs of my supervisor.  Yes, the connection design is deferred to others.

The company I am consulting to, does have E&O insurance.  Can I be named on an E&O policy if I am not a direct employee? It sounds like Ron has a good idea to have a contract indemnifying me and limiting my liability.  

RE: Professional Liability

I think Ron's advice is a good idea...

If I understand correctly you are an employee of Company A who is contracted by Company B.

Company A is not registered with the TBPE as an engineering service provider, but, Company B is.

Company A is a temp agency or "Job Shop Agency"?

So you have a contract with Company A who has a contract with Company B, is that correct?

Keeps getting trickier by the minute... do you have to sign/seal your work (i.e., do you get paid more) can one of the other officers not do that.  I don't know if I have any more answers/advice for you on this one other than Ron's.

 

RE: Professional Liability

(OP)
Haha yes, it does get a bit confusing.  If I wanted gray area to be my focus I would have been a lawyer or politician!

Your points are all correct.  I dont know if Company A is registered or not, but I would assume not because they are not provided engineering services.

I am not being asked to sign or seal my work...
My understanding is much of the work is issued without seal and/or signature.  But the engineer responsible for the work is identified by intials on the individual drawings issued. So the gray area is across several issues.  work not being sealed, non-engineers performing engineering, lack of engineering. Im not sure where to draw the line between comfort and risk.  

It is not an ideal situation - most PEs wouldnt be doing drafting work.  But the economy here in Houston is struggling at best so any work is welcome.  That being said, i dont want to jeopardize what i worked quite hard to earn.

Where do i start to look into the contract as Ron suggested and for professional liability insurance.   

RE: Professional Liability

Now I'm no lawyer, but, I believe that common law work for hire doctrine apples and the law of agency applies.

http://en.wikipedia.org/wiki/Work_for_hire

http://en.wikipedia.org/wiki/Agency_(law)

Based on "work for hire" doctrine and "law of agency" you are considered a special agent (read limited duration or capacity) and should be indemnified as if you were an employee.

Also based on "work for hire" doctrine I believe your designs will be the property of the company you are acting as a special agent for since they do have the capacity to perform engineering design services.

Your direct supervisor may not be licensed but he is working as an agent for the officers who are licensed to practice engineering.  Essentially he is carrying out their wishes.  This still doesn't alleviate you from the requirements of "Duty to Warn", however, I think you are covered regarding tort liability, such as negligence.  A tort means a wrongful act that creates a private injury upon which a suite may be brought as opposed to a crime that is a public offense.

I think you should spin this by your local law school (I think they usually offer some kind of legal outreach services) or legal aid society for verification of these assumptions.

RE: Professional Liability

TXPE....is the work you are doing offered to the public?  Is it incorporated into anything that has to do with the public?  If so, both companies, if not licensed by the Texas Board, may be in violation of state law....and, guess what...as the only licensed engineer in the group, they would come after you FIRST, since most state boards have more jurisdiction and control over the licensee, than others.

Check with your board.  Talk to them directly, not by email or letter.  Talk to their general counsel.  He can give the interpretation that would apply to you.

RE: Professional Liability

(OP)
The services are for private companies that are not used by the public - oil and gas production plants.  The company I am employeed by (not providing engineering service for) does not issue services to the public but private companies.  

There are several PEs on staff at the company I am contracted to.  If i was the only PE on staff, I would certainly worry because there would be serious issues with the Texas Board.  I am the only structural engineer for the company though.

I will call my Board.  They can best answer questions regarding my concerns.  Thank you for your input.  

RE: Professional Liability

Private companies would be part of the public. Public here does not mean the people walking on the road only.

If your company is listed as an engineering service provider, it is considered company providing service to public. A private co. can also retain such companies. Check out the state's business listing, which the company is located.

Rafiq Bulsara
http://www.srengineersct.com

RE: Professional Liability

rbulsara...thank you!  That is correct.  Just because you provide services to other companies, does not mean it isn't "for the public".

RE: Professional Liability

Are oil & gas plants considered license exempt in your jurisdiction? Perhaps that exemption also extends to engineering subcontractors as well?

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