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Re: Code created Malpractice opportunity

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

You are neglecting some important legal requirements. Primary of 
which is the doctrine of causation. For example, typical 
instructions to a jury would be something like the following:

A plaintiff who was injured as a proximate result of some negligent 
conduct on the part of a defendant is entitled to recover 
compensation for such injury from that defendant. Thus, the plaintiff 
is entitled to a verdict in this case if you find: 1. That the defendant 
was negligent, and the such negligence was a proximate cause of 
the injury to the plaintiff.

Thus, even if your hypothetical engineer failed to use due care, 
there is no negligence liability unless that failure caused the injury.

To help alleviate the panic that the sky is falling, consider yourself 
to be the plaintiff's engineer who is faced with the task of proving to 
the jury that the failure to consider the diaphragm as rigid and 
instead considering it as flexible caused the damage the plaintiff is 
complaining of.

I do not mean to imply that the code does not present an issue of 
concern. Based upon your scenario, I would expect the plaintiff's 
attorney would base the claim on the doctrine of negligence per se, 
which essentially states that the duty of due care is violated if a 
safety statute is violated.  However, even under negligence per se 
causation is required.

> 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.

Under your senerio, liability would appear to be limited to breach of 
warranty or contract. That is the engineer failed to do what he 
promised to do.  Malpractice is a tort or negligence claim not a 
contract claim.

> 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) 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