Why Engineers are Especially Vulnerable to Claims and Common Mistakes to Avoid. Timothy D. WoodwardForizs & Dogali, P.A.

2012 Transpo Conference

October 30, 2012

Who am I?

• A lawyer who deals with this everyday• Lawyers Perspective• Practical Tips

Am I YOUR lawyer?

• Not forming Attorney/Client relationship here today

Why are claims for engineering malpractice/negligence common?

•

• Your insurance is different• It is easy to take advantage of engineer’s

natural instincts• Defense is usually technical and confusing to

non-engineer jurors• The law is bad for engineers in Florida

Can engineers be sued for professional negligence by someone other than their client?

• Yes• Florida has expanded risk for engineers. It is

open season in any type of claim so long as it was “foreseeable” that claimant could be damaged

Can Florida engineers protect themselves by using limitation of liability provisions?

• Yes and No, but mostly No• Only ever applied to claims from your client• Newer law says probably enforceable for

company, but not for individuals…which means it is essentially useless

• Law is in state of flux

The Question You Should Be Asking Yourself!

So . . . if this Woodward guy is right and I am:(1) exposed to professional negligence claims by

everybody and their brother; (2) I can’t enforce a limitation of liability

provision in my contract (even if I were lucky enough to find a client who would agree to it);

(3) my insurance is like a claims magnet; and

The Question You Should Be Asking Yourself!

(4) I am genetically predisposed to be an easy mark for Plaintiff’s lawyers,

then what are some things I can do to help myself . . . even just a little?

Report the Claim

• Report the claim to your in house lawyers and/or insurance company ASAP

• If you have to think about whether you should, then the answer is Yes

• Set up a claim number or give it a name• Practical reasons for this: Privilege, Coverage,

Defense Costs

Appoint

• Appoint somebody internally in charge of claim management

• Unworkable, costly, stupid, inefficient and counterproductive to have too many cooks in the kitchen

Remove

• Anybody with a personality conflict should be reassigned or minimized

• Use the Appointed person to control further substantive communications

Support

• Don’t vote the engineer (or subconsultant) who s/s the plans off the island

• Don’t allow negativity• Drama = You Losing Money

Demand

• Demand to have the right people in the right places

• Don’t just take an insurance company’s word for it when they “assign” you a lawyer they tell you is a “bulldog”

• You should recommend or at least endorse experts

• Truth is your insurance company wants profit

Preserve what you’ve got…now!

• Immediately inform records IT folks to preserve records in the file

• Big $$$ issue if lawsuit• Sworn statement, especially of lower level

employees or employees of subconsultants

Stay Awake!

• If continuing work on a Project, be very careful because it is a common practice for Owners to take advantage of your relationship.

• Examples Asking for advice regarding a contractor’s claim or involvement with forensic analysis of “problem” (that might be your problem).

• Even if you don’t want to look down, you should know when you are walking on a tightrope.

Don’t be Afraid to Negotiate

• Always be willing to listen – you have the power of NO!• First negotiations should be about rules of negotiations

– engineers need to get comfortable with the logistics of the negotiation process

• Think outside the box regarding settlement • Understand your insurance policy and get to know

adjuster• Before you try to settle know (1) your “upside” (rare)

and (2) what a win will cost you in terms of money, time and reputation

Thank you for your time.

QUESTIONS?