The possibility of unforeseen conditions at a project site can be a major source of stress for architects, engineers and other design professionals. Unfortunately, unforeseen conditions are also a frequent source of professional liability claims.
Improperly constructed and outdated structures, materials and structures damaged by weather and wildlife, and the existence of constituents of concern often are not apparent until after construction is underway—when their remedies are much more costly.
As the design professional on the job, you risk being blamed by the client or other stakeholders for these conditions and their handling. Defending against such claims can be difficult and expensive if you haven’t covered all your bases.
Fortunately, reducing the risk these unforeseen conditions pose to your reputation and career is easy if you take the right precautions. Here’s what to know:
One of the first ways you can reduce the risk of a claim resulting from unforeseen conditions is by choosing your projects carefully. Unforeseen conditions are always possible with any project, but some projects and clients present a higher risk for claims than others.
Projects prone to these problems can include those dealing with particularly old or historical structures. To protect against these risks, the proper early steps are crucial. Clients with unrealistic goals or who behave unprofessionally may also present a higher risk. Consider screening potential clients and beware of clients and projects that could expose you to excessive liability.
Writing good contracts is one of the best ways to reduce your risk of a claim on a project, including claims for unforeseen conditions. A good contract not only sets out in writing the expectations and roles for a project, it also serves as a road map to solve problems if they occur.
Be sure to address unforeseen conditions in your contract. Note the potential for unforeseen conditions to become known and establish a proactive protocol for dealing with them. It’s also possible to affirmatively disclaim liability arising out of unforeseen conditions directly in your contracts.
Contract risk management is really an important topic for architects, engineers and all other design professionals. Remember that as a benefit of having your insurance with Lockton Affinity Architect & Engineer, you have access to complimentary contract reviews for all your projects.
Ordering preliminary investigative reports can minimize the chance of an unwelcome surprise later. A problem found before construction begins is less likely to result in a claim against you than one discovered at the end of construction. While reports may be an added expense for the client, conditions found and addressed earlier are often easier to remedy.
For projects where your recommendation for a report is rejected by a client, document in writing the specifics of the reports you recommended and your reasoning for recommending them, then have the client acknowledge in writing their choice to move forward without obtaining the reports.
Establishing protocols to deal with any unforeseen conditions as they are discovered can also help lower your risk of a claim. Claims can be alleged not only for the untimely discovery of a condition, but for how you responded to it, or failed to respond to it, after its existence is known.
It’s a good idea to put in writing how an unforeseen condition will be handled at the outset of a project, especially where issues are anticipated or likely to emerge. Establishing a protocol can be simple, such as stating in your contract that contractors are expected to cease construction activity and preserve the area pending review of the condition by you.
Responding to the discovery of an unforeseen condition proactively can help minimize your risk for a claim even when an issue does arise. Be direct in your handling of a discovery. Communicate clearly with the client about the condition, reference your contract and provide professional guidance, as needed.
To further reduce your risk of a claim related to your handling of the discovery, consider spending additional time onsite after discovery. Use this time to investigate the condition, ensure your recommendations are being followed and note the impact the condition is having on other parts of the project.
Proper documentation goes a long way in helping to prevent claims. By keeping a written record of all professional advice and client decisions, you can typically avoid becoming a scapegoat for the discovery of an unforeseen condition or its handling.
Document any recommendations you make and the client decisions based on that advice before any potential condition is known, as well as after a condition has been discovered. Also be sure to document your assessment of the condition, whether the protocols you established are being followed, and the impact the condition has on the rest of the project.
Make sure the professional liability insurance you carry protects against the risks you face as a professional. Realize that the wrong insurance may offer fewer benefits, exposing you to unnecessary risk from unforeseen conditions.
At Lockton Affinity, we understand the needs of design professionals like you. You’ll benefit from risk management resources that can help reduce your risk of a claim, along with competitive coverage and prices and best-in-class customer service.
Receive an indication of what our coverage will look like for your business today by visiting LocktonAffinityA-E.com or call (888) 425-7011.