Standard of Care
Standard of Care
(OP)
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.
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.
Talk To Other Members
RE: Standard of Care
RE: Standard of Care
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'.
RE: Standard of Care
RE: Standard of Care
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.
RE: Standard of Care
Oh, let me guess... lawyers and clients... ;)
Mike McCann, PE, SE (WA)
RE: Standard of Care
Mike McCann, PE, SE (WA)
RE: Standard of Care
RE: Standard of Care
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.
RE: Standard of Care
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.
RE: Standard of Care
RE: Standard of Care
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.
Check out Eng-Tips Forum's Policies here:
FAQ731-376: Eng-Tips.com Forum Policies
RE: Standard of Care
Dirty pool in my opinion. Definitely not justice.
Mike McCann, PE, SE (WA)
RE: Standard of Care
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.
RE: Standard of Care
There a few of those in our area for sure.
Thanks for your advice.
RE: Standard of Care