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Code created Malpractice opportunity

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________________
Dennis S. Wish PE
seaintonln(--nospam--at)aol.com

To: SEAINT Listservice
CC: SEAOSC Board of Directors and the SEAOC Board contacts

I urge you to give me a little of your time to convince you that engineers in 
Seismic zones 3 and 4 may be in legal jeopardy. Here is a possible case based 
loosely upon a true story told to me by a professional engineer and close 
friend. 

The new owners are upset with their home. Regardless of their true reasons, 
the owners dissatisfaction with the quality of the home has been festering 
for months. They decided to hire an attorney to represent them. The actual 
complaints may be structurally insignificant, however they are scared by the 
occurrence of shrinkage cracks in the stucco, have cracking flatwork in the 
garage or patio, or may even notice minor cracks occurring at doors and 
windows after last weeks earthquake. Combined with the aggravation that they 
experienced with the general contractor who built their home, these owners no 
longer feel safe in their home. 

For whatever reason, their anger escalates and results in a suit filed 
against everyone -- the architect, engineer and the contractor. They intend 
to collect for damages, actual or perceived.  The home owners are convinced 
that the home is structurally deficient and have decided that they want out 
of their obligation and into a new home at the expense of the teams liability 
coverage. 

Is this such an unusual story? After the Northridge earthquake, many of us 
represented unreasonable homeowners as well as unreasonable insurance 
adjusters. Engineers are sued as Cross-complaitants all the time, but in each 
case the lawyer is required to hire a professional engineer to substantiate 
the validity of the claim. 

"Existing law requires attorneys for the plaintiff or cross-complaintant, in 
malpractice actions involving architects, professional engineers, or land 
surveyors, to file a certificate declaring the attorney has consulted and 
received an expert opinion from a licensed architect, professional engineer 
or land surveyor," (from pg. 10 of the April 1999 SEAOC Plan Review). 

After intense review, the hired expert finds no evidence of structural 
defects. However the expert feels obligated to disclose anything that he is 
aware of above and beyond the intent of the claim. As was explained to me by 
an engineer who specializes in this work, there is an ethical responsibility 
(and a protection from the experts own liability) to disclose to the attorney 
any and all deficiencies that the engineer is aware of. The expert believes 
that the engineer of record failed to comply with the provisions of the '94 
UBC section 1628.5. This section requires "distribution of shear to the 
various elements of the vertical lateral-force-resisting system in proportion 
to their rigidities, considering the rigidity of the diaphragm." AND, as 
added into the 1994 code "Diaphragms shall be considered flexible for the 
purposes of distribution of story shear and torsional moment when the maximum 
lateral deformation of the diaphragm is more than two times the average story 
drift of the associated story..." 

A few hours of engineering work (paid by the attorney who may have already 
used this ploy on numerous occasions) verifies that the diaphragm (as is 
typical with most all small residential type structures) should have been 
designed as rigid and the resulting torsional shears added into the resisting 
shearwalls. 

Therefore, the expert determines that the structure is noncompliant to 
minimum code requirements and the attorney amends his suit addressing the 
design deficiencies as a basis to attack the engineers liability insurance. 

Remember that there are no deficiencies noted in the home and this section of 
the code, although required as a minimum provision, was not enforced by local 
building officials and was not the standard of practice by the majority of 
the professional community. Still, the engineers design represents a less 
than minimum standard published by the code. He is, therefore, liable for his 
actions.

Few of us have the financial resources to fight this and insurance companies 
will most certainly settle the claim. This is a real possibility as we 
discover that very few of us complied with this provision in the 94 UBC or 
the equivalent City of Los Angeles code. I am astounded why this was not 
caught earlier and corrected. I am even more concerned and scared by the 
possibility of being drawn into a frivolous law suit by a homeowner who may 
have a quality complaint and an attorney who understands the lack of 
compliance to this provision and is encouraged by the larger pot of gold 
which is at stake and justifies the attorney's risk against contingency. 

My outrage grew as I read the comments (April 1999 SEAOC Plan Review) by Ron 
Gallagher SE, who is the Chair of the SEAOC Seismology Committee and who 
believes himself to be a demagogue (as he compares his position to other 
members of our association -- including the SEAOC Board of Directors) . 
Gallagher needs to take responsiblity for failing to recognize how 
Seismology's efforts has created a large potential liability for the 
professional community. He should also take responsibility for not insuring 
that each and every engineer was clearly apprised of the provisions and 
provided with an appropriate method for determining the code requirements for 
deflection of an unblocked diaphragm.  

If, as a profession, we lack the foresight to identify how a provision, such 
as this, will so adversely affect a considerable portion of our profession, 
we should not approve it or ever allow it to become code. Mr. Gallagher may 
have done little in his career with the design of small wood framed 
structures which are greatly affected by this provision. If his intention was 
to focus on larger structures with wood diaphragms then he missed the boat as 
most of these structures will remain flexible. If he intended to correct the 
20 Billion dollar deficit that the insurance industry paid in damage to wood 
framed homes, he is missing the boat by ignoring the studies done by FEMA and 
others which blames a great deal of the deficiencies on the construction 
practice.

Still, Mr. Gallagher has created a monster in this code that places a great 
many of us in legal jeopardy. As the Chair of Seismology - "the heart of the 
Association" -- he has ignored the welfare of the professional community by 
creating a trap which can and probably will be used against many of us to 
legitimatize fraudulent claims. As "the Chair of the Seismology Committee 
plays as important a role for the Association as the President," he should be 
responsibility for his actions and the published results of his committee 
work. 

The bigger question remains: What will SEAOC or SEAOSC do to help the 3400+ 
members who may soon be the targets of every hungry ambulance chaser in the 
state? Have we seriously considered the consequences on the Insurance company 
representing engineers? If these provisions remain, will this affect the 
ability to obtain coverage as each of us remains in a liable position even 
after the new code takes affect?

I urge every member of this list (and all of your associates are may not be 
subscribers of this list) to write to your local SEA chapters and SEAOC 
(seaoc(--nospam--at)aol.com). Strongly recommend that the association take steps to 
protect each of us by issuing a position statement to all members (and/or 
engineers in the jurisdiction of the '94 UBC affected by this section of the 
code) and building officials. This may help to reduce or hopefully eliminate 
the potential liability that hangs over our heads. Better yet, foreword a 
copy of this email to anyone you believe can help address this problem with a 
few of your own comments added.

Maybe the letter should be drafted by Mr. Ron Gallagher since he admits that 
he "feels the Board as a group does not fully comprehend the amount of work 
[his] Committee does."  And frankly, Mr. Gallagher, neither do the rest of us.

Respectfully,
Dennis S. Wish PE