Claim Reduction is a monthly series by the ASCE Committee on Claims Reduction and Management in hopes of enabling engineers to learn from problems that others have encountered.
By John Godwin Tawresey, S.E., F.SEI, FTMS, Dist.M.ASCE
While careful documentation can reduce the likelihood of future claims, it's crucial to recognize situations where documenting certain information may increase the risk of a claim being initiated. Claims arise when situations deviate from expectations, such as economic loss, property damage, or death/injury. Anyone can sue a civil engineer to recover from unexpected events.
Before a claim is initiated, a limited investigation process often occurs, revealing documents that can contribute to initiating a claim. In some cases, even if your firm is not initially named in a claim, the discovery of damaging documents can lead to your firm being added to the litigation.
Here are some examples.
Mistakes
“I made a mistake” is a common admission, and documenting such errors can trigger a claim.
A real example involved an engineer acknowledging a calculation error in an RFI to the contractor without requesting senior review and advice. Upon review, the resulting design was sufficiently conservative such that the calculation error had no consequence. However, a claim evolved because of other non-engineering issues on the project and required a costly defense.
While the documentation of a mistake may result in a claim, a mistake does not directly imply that the firm is liable, as in the above example. The mistake needs to be a “negligent” mistake and have a proximate correlation to the damages or injuries.
If you discover a mistake, verbally inform senior managers, risk managers, attorneys, or insurance carriers for evaluation and appropriate action. Do not document. Do not delay or fall into denial. Early action is essential to mitigating the consequences of mistakes.
The cosmetic crack letter
When things are different than expected, the engineer is often asked to evaluate the cause. Some examples are concrete cracks, window and roof leaks, failed drainage, excessive deflections, bothersome vibrations, and landslides. The written response can result in unintended consequences.
An actual claim resulted because an engineer identified cracked concrete as only a cosmetic problem. The project's owner was unsatisfied and hired another engineer for a second opinion. The other engineer practiced mainly in the forensic area. The resulting claim went well beyond the cracked concrete.
Other forms of the cosmetic crack letter include “deflections are within code limits,” “vibrations are expected,” “all buildings leak,” “no floors are flat,” and “it is not in my scope” letter assertions.
Non-engineers typically believe we can solve almost any technical problem. If you are requested to evaluate a problem, assist in finding the solution rather than denying any responsibility. A suitable “bedside manner” can avoid a claim.
Site visits and photos
When visiting a job site, the engineer is not an inspector. The engineer is an observer. The term inspect defines a rigorous and complete review of construction relative to what is shown on the contract documents. To observe defines a project review at appropriate intervals to become generally familiar with the progress and quality of the contractors’ work, and to determine if the work is proceeding in general conformance with the Contract Documents.
Engineers usually take photos of the work in progress during a site visit. These photos should be limited to support items to be included in the site visit report. Sweeping photos of the site or more detailed photos of items not included in the report may contain defects not observed.
A significant claim arose due to cracks in the brick veneer of several newly constructed office buildings, prompting extensive investigations by numerous experts to identify the root cause. The inquiry involved intricate finite element analysis predicting deflections and in-depth examinations of masonry design and materials, resulting in substantial costs for the plaintiff and the defense. A breakthrough occurred during a mediation session when a photo of the construction site was presented. The image revealed the installation of the brick veneer while the floors' reshores were still in place. Unfortunately, the observing engineer took the photo, invoking the "you should have known" rule. Notably, most engineers might have overlooked the issue in similar circumstances. It was only a sweeping site photo.
Many claim defenses have been damaged by photos taken during a site visit, with the argument that the engineer observed a situation but did not report it. The photo proves that the engineer “observed” the situation, whether they did or not.
Careless conversation
“The construction manager is an idiot” or similar written comments in emails or text messages between engineers or other project personnel can result in a motivation to sue. Unprofessional comments or expressions of non-technical opinions, whether written or verbal, can damage the firm’s reputation and result in a claim.
They may also serve as the basis for a complaint to a State Professional Engineering Licensing Board as “unprofessional conduct.”
Maintain a professional demeanor in all communications, avoiding derogatory remarks or unconstructive comments about colleagues, contractors, or project stakeholders. Stick with the facts; ask a question or answer a question with no commentary unless pertinent to the issue.
Personality conflicts
Conflicts among personalities are common within a team, and such clashes are often apparent to other team members. Senior team members must address these issues promptly, seeking resolutions to the underlying causes or considering personnel changes if necessary. In the event of personnel changes, it is advisable to refrain from explicitly documenting the reasons for the change. Conflicts should not be addressed or mentioned in project-related emails or other correspondence.
Emails
It is now commonplace in the construction industry to utilize email rather than traditional letters to convey decisions. In the past, file copies of letters allowed senior managers to scrutinize correspondence. Many firms employed a "day file" containing copies of all communications for the day or week. However, this practice has become obsolete, transferring junior engineers' responsibility for overseeing correspondence quality.
Unfortunately, many have limited knowledge to navigate and mitigate potential claims against the firm effectively.
In today's world, it is imperative for practicing engineers to contemplate potential adverse reactions in every communication carefully. As integral members of a collaborative project team, engineers should discard the notion of limiting communication to only two individuals within the team. Instead, they should view each correspondence, whether through email or other means, as a message disseminated to all stakeholders involved in the project.
Dealing with challenging situations can be exasperating, especially when faced with false accusations, distorted portrayals, and misrepresentations of your contributions. While the urge to draft a strongly worded email expressing your frustration may be tempting, it is advised not to write or send it. Instead, consider writing a document (not an email so it can be deleted) containing all the grievances. Revisit the document content the next day with a fresh perspective and perhaps have it reviewed by a supportive team member. Use the end of the day to share your feelings over dinner with a friend, including some adult beverages, but do not send the document in an email – ever!
In summary
Practicing engineers face a constant challenge in deciding whether to document certain information. Claims almost always seem to have a communication component issue. When damaging communication is documented in a letter, email, report, or other, it may trigger the initiation of a claim and, should the claim occur, make it harder to defend. When decisions are made and appropriately documented, a claim can be avoided and more easily defended. Balancing careful documentation with the potential risks involved is essential for claim reduction and effective defense.
John Godwin Tawresey, S.E., F.SEI, FTMS, Dist.M.ASCE, has 52 years of experience as a structural engineer. As chief financial officer of KPFF Consulting Engineers for 35 years, he was responsible for the firm’s risk management education program.
