With all due respect your comments generally occur at the conclusion or in
the process of litigation rather than before the complaints are filed. The
Engineer of Record and his or her insurance carrier must pay the entire
financial burden to prove his innocence. Whether or not he can retrieve his
legal expense if proven innocent is a moot point if he or she must bear the
stress, anguish and or shame of guilt if found liable. Worse yet, he or she
must bear the burden of guilt even if the insurance company decides to
settle with no admission of guilt.
I am not arguing the validity of your arguments, only that they are
contingent upon a time element. The engineer is implicated in the discovery
phase - all it takes is a professional peer to believe that the engineer was
at fault. With the availability of ambiguous rhetoric in the code the
chances of this happening increase. Shouldn't our responsibility within our
profession include removing the "loop-holes" that allow the legal profession
to spin an interpretation of the events so as to threaten the potential for
greater loss than that which might reasonably be agreed in pre-trial
Better yet, shouldn't we consider this possibility before we codify an
unproven theory or at the time when a known error becomes public knowledge?
What excuse is there for the lack of a reparation for the existing errors
that are acknowledged in the code such as the Rho issue?
What really pi*?es me off is the fact that we have to spend so much time
discussing our cost to defend valid engineering judgment simply because a
group of policy-makers refuse to act in an expedient manner to correct the
problem and protect their peers. These are the people that should ultimately
bear the responsibility for any cost of defense that the practitioners of
the code spend in doing their jobs to the best of their ability.
Dennis S. Wish, PE
From: GEOHAK(--nospam--at)aol.com [mailto:GEOHAK(--nospam--at)aol.com]
Sent: Saturday, February 26, 2000 5:12 PM
Subject: EOR and Construction Defects
I have read a few postings today regarding "defects" and the EOR's liability
and would like to comment:
First, just because "structural defects" existed in a project does not
necessarily implicate the EOR. If you will remember my prior comments,
defects, even structural, do not mean necessarily that the enginner is at
fault. This is true even if the engineer's design was found,
to be below the standard of care, or not per code. "Construction Defects"
are caused by, among others, improper construction procedures, defective or
inferior materials, lack of quality control, lack of experienced and skilled
labor, mistake in reading and following plans, or pure and simple, a
contractor's negligence or even incompetence!! I would not jump to a
conclusion that the engineer is at fault.
It is necessary to place blame where it belongs, and hence I go back to
my comment that the inquiry should be: "Did the engineer's design cause
This inquiry requires a careful engineering as well as legal analysis,
and a sophisticated refinement of the relationship between those two
in a defects cases.
My personal view is that the insurance carrier and defense counsel are
either not interested in doing that, not capable, or both.