Out west, near Hawtch-Hawtch

Out west, near Hawtch-Hawtch,
there’s a Hawtch-Hawtcher Bee-Watcher.
His job is to watch …
is to keep both his eyes on the lazy town bee.
A bee that is watched will work harder, you see.
Well…he watched and he watched.
But, in spite of his watch,
that bee didn’t work any harder. Not mawtch.
So then somebody said,

hbqrpe6s_400x400 “Our old bee-watching man
just isn’t bee-watching as hard as he can.

 He ought to be watched by another Hawtch-Hawtcher.
The thing that we need
is a Bee-Watcher-Watcher.

-Dr. Suess

With my thanks (and apologies) to Dr. Suess, the Bee-Watcher always comes to mind when defending claims alleging negligent supervision and inspection against design professionals.

A recent case from the Court of Appeals in Mississippi provides guidance as to the liability of design professionals for supervision and inspection obligations beyond those assumed in their contract.  In McKEAN, v. YATES ENGINEERING CORPORATION, an engineer was sued from injuries that resulted from scaffolding failure during the construction of a medical center.

The engineer was to provide design drawings for the scaffolding and second-story form work. The plan provided was fundamentally flawed. Even though the plan was effectively impossible to follow, the contractor had no comments or questions about the design and it ignored essential features of the scaffolding design.

After the scaffolding collapsed, the plaintiffs claimed the engineering firm was “negligent in inspecting the scaffold[ing] and failed and/or refused to correct known deficiencies and defects in the construction [that] made it dangerous to use prior to the subject incident.” The engineer, however, did not have that duty under its contract.

Plaintiffs claimed the engineer negligently failed to inspect the scaffolding before concrete was poured. However, there was no contractual duty on the engineer to do so. For this reason, the Court examined the circumstances when a design professional’s supervisory powers go beyond the provisions of a contract.  It enumerated seven factors that it believed should be considered in determining whether there was such a duty. These were: (1) actual supervision and control of the work; (2) retention of the right to supervise and control; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) assumption of responsibilities for safety practices; (6) authority to issue change orders; and (7) the right to stop the work. The Court found that the evidence did not support the conclusion that engineer had a duty to inspect the scaffolding.

We frequently see similar claims of failure to observe, inspect, or supervise asserted against architects as well as engineers.

This case provides a cautionary tale and useful guidelines to design professionals about the risks of assuming obligations not contained in their contract.

If a design professional performs supervisory and inspection tasks, notwithstanding the limited scope of its contract, courts may find the design professional ‘assumed a duty of safety’ which may leave it liable for damages notwithstanding any understanding to the contrary.

Casey Quillen’s firm is a member of the AIATrust Legal Network providing full legal service to design professionals throughout Colorado.  Ruebel & Quillen, LLC now has an office in Steamboat Springs, CO to better serve firms West of the Continental Divide.

The Importance of What We Do

aalto-4Many of the conversations architects have with other architects are about our value. We know what we do is valuable and we know why we do it. It seems our recurring problem as an architectural profession and one we can’t seem to answer is “how do we get the public to understand why the work we do is so important?”

To increase the perceived value of architecture, increases the wellness, health, safety and equity within our communities and cities. But yet, we are a small profession (relative to law and medicine) and it is often difficult to share how architecture makes an impact.

Last week I visited the Alvar Aalto Library at Mount Angel Monastery outside of Portland, OR. We happened upon a monk whom was waiting to give a group a tour, but apparently hadn’t shown up. It was clear this monk thoroughly enjoyed giving tours of this beautiful building and was happy to do so for a group of architects that just happened to walk through the door.

What struck me most, outside of the architecture, was how appreciative this monk, who was not formally trained in architecture, was of this building. He expressed some of the design intent behind painting the roof orange (to change the color of the northern light entering the building) or how Aalto compressed the entrance only to release the visitor into the soul of the library. I wasn’t sure whether or not to attribute his depth of knowledge to a pure love of architecture or the fact that he spends day after day reading (presumably anything but more specifically architectural books) honoring his vow of silence.

It became clear by the end of this trip, that architects cannot be solely responsible for spreading the message of why architecture is valuable to our society and has an impact on many societal issues we face. Similarly, this was clear when the monk took out a coin from the rare collection dated 36 AD and told us researchers had tested and believed this to be a coin owned by Pontius Pilate. None of us on the tour were Catholic, but understood the weight of who once owned this coin and the impact that has had on world history. Clearly there have been powerful messengers of Catholicism.

After passing around the coin, this very jovial monk said very solemnly “What you all do as architects has never been more necessary and has never been less appreciated.” I took this as a charge to go back to my desk and figure out how to best equip those around me to speak about the power and importance of architecture. This isn’t about gaining more clients or building the next iconic museum. The very core of what we do is to create a better built environment for all of those living in it.

I challenge you, whether you are an architect or a friend/family of an architect to talk with someone about how our buildings affect our lives. Once we all become messengers, we have a better opportunity to build great places for all.

Emerging Copyright Case

shutterstock_159358187The Architectural Works Copyright Protection Act provides protection to original designs of architecture in virtually any form, including architectural plans, drawings and buildings.  These designs have historically been treated as intellectual property belonging to the design firm that created it.

The concept that the design professional retains this right is plainly stated in standard form contracts such as those published by the American Institute of Architects (AIA) and the Engineers Joint Contract Documents Committee.

The standard AIA provision provides that the drawings are “Instruments of Service” and the license to use them can be withheld by the Architect in the event of a dispute between the Owner and Architect.

There have been a number of cases in which an architect’s drawings were used to complete a project when the original project developer transferred the project. In several of these situations, the original architect successfully sued the new developer for the unauthorized use of his design documents.  A recent decision from an Ohio court bolstered this principle and extended the risk of copyright infringement to the contractor and subcontractors.

In Eberhard Architects v. Bogart Architecture, an architect terminated the owner’s use license after failure to pay.  The architect also notified the contractor and subcontractors that the license to use the drawings had been terminated.  The architect sued the owner for breach of contract (due to non-payment), and also the contractor and subcontractor for copyright infringement (for continuation of work utilizing the Architect’s plans). The court held that the contractor and subcontractors could be liable for copyright infringement by continuing to work on the project.

The plain language of the AIA contract was paramount to the architect’s success.

By way of contrast, the provisions of the Construction Owners Association of America (COAA) contract form grant the owner of the project all rights to any “documents or electronic media prepared by or on behalf of the professional for the project.”  Such a clause effectively releases the design professional’s intellectual property rights irrespective of the Architectural Works Copyright Protection Act.

Although Eberhard may have little impact on Colorado design professionals, it is an excellent illustration of the importance that all construction professionals must analyze and understand the project contracts and educate themselves on the risks involved – whether those risks be waiver of intellectual property rights or potential liability for copyright infringement.

Casey Quillen is a member of the AIATrust Legal Network providing full legal service to design professionals throughout Colorado.

When Insurance Fails You

In purchasing a professional liability policy, a firm is counting on a broader financial entity – an insurance company – to absorb all or a portion of the cost of claims and litigation in exchange for premiums paid.

There are a number of articles from AIATrust regarding risk management and how to respond if a claim arises.  However, there are few mentions of what to do if your insurer denies your tender of a claim.

“Why would my insurer deny a claim? Isn’t that the whole reason I pay premiums – for coverage?” You ask.

Let’s presume you purchased your first policy from Company A in 2009.  You renewed your policy faithfully in 2010, 2011, and 2012.  Then you switched to Company B in 2013.  In the middle of that year, you received a letter from an attorney putting you “on notice” of a claim against you from a project you had designed back in 2009.  You send it you your agent – but the carrier comes back with a denial of coverage. What happened?

There are differing insurance policies.  In some, coverage is triggered based on the date the claim is made.  In others, coverage is triggered based on the date of the “occurrence”.  And some have their own unique language.

In the scenario above, the policy provides:

We will pay for damages and claim expense for any covered claim against you alleging a negligent act, error, or omission in your professional services performed on or after the policy date, provided the claim is first made against you during the policy period.

In other words, the work and claim must be presented during the same policy period to trigger coverage (under this policy).  If you did not purchase optional extended coverage from Company A or Company B – you may be left high and dry when you needed insurance the most.

If you have received an initial denial from your insurance carrier, follow these three steps:

  1. Do not panic.  Your request for coverage is not a one-bite-at-the-apple proposition.  The notice of claim may not contain sufficient facts (or urgency) to trigger coverage in the eyes of the initial reviewer.
  2. Stay involved. Do not ignore the claim, your client, or opposing counsel.  Briefly tell them coverage has been denied and you need more time to find personal counsel and respond to the claim.  You can still be proactive by participating in inspections, assembling your documents, and communicating with your client and sub consultants.
  3. Contact your legal counsel. Experienced litigation counsel can not only assist you in preparing for and defending the claim against you but will have knowledge of insurance coverage. Counsel will write a demand letter to your carrier using the “legalease” often necessary to encourage your insurer to take a more serious look at the claim and coverage.
  4. Consider your options.  An insurance policy is a juicy target for claimants.  You may have been sued even if you did nothing wrong; but that does not mean the lack of insurance will make the claim disappear.  If the carrier continues to deny coverage, you should consider whether there is an opportunity to repair the claimed defect or settle the claim out of your own pocket before you incur significant costs and attorney fees defending a matter on principle.  It is a bitter pill to settle for nuisance value, but it is a reality of doing business.  Even your insurance carrier would balance the cost of defending a claim against settlement opportunities.  There is little point in spending $50,000.00 in attorney fees (not to mention the value of your time) for victory in court when you could have ended the litigation for $20,000.00.

If your professional liability insurance was purchased from a “set it and forget it” frame of mind, dust off your policy documents and review your coverage.  If you have – or will – switch carriers during your firm’s operation it is imperative that you compare the old and new policies with an eye toward coverage gaps.

 

Casey Quillen’s firm is a member of the AIATrust Legal Network providing full legal service to design professionals throughout Colorado.  Ruebel & Quillen, LLC now has an office in Steamboat Springs, CO to better serve firms West of the Continental Divide.

 

Inclusive Growth

By definition, gentrification is the buying and renovation of houses and stores in deteriorated urban neighborhoods by upper and middle-income people, which ultimately improves property values but displaces low-income families and small businesses.

As architects, planners and urban designers we often struggle with the idea of gentrification. Specifically, in Denver, we are often attracted to the eccentric neighborhoods that exist because of the diversity of families, lifestyles, cultures and businesses. This in turn attracts many people to those neighborhoods; therefore, becoming more attractive places to develop and build new homes, apartments and businesses. What we may often forget or deliberately choose to forget, is that when we develop these neighborhoods with the uses that stimulate the economy, we are displacing families and businesses because of the rise in property values, residential rents and commercial rents.

The question then remains; how do we create economic opportunity in our neighborhoods while remaining inclusive?

citybuild-1

This week, the Downtown Denver Partnership hosted their annual CityBuild event “CollaborEAT”. For one night, the CityBuild team activates a space in the city to demonstrate how activity can influence our urban spaces. This year, they turned a surface parking lot between 26th and 27th on Larimer into a four-course dining room. The event featured speakers from the RiNo Community to talk about the very issues of inclusive growth. As an Art District, RiNo’s mission is to smartly grow the district, but maintain the quality, culture and artists within the District. As you can imagine, this hasn’t been an easy task. There have been a lot of partners involved in the development of RiNo as it is today.

city-build-3

It can be argued that RiNo is not affordable. Part of the CollaborEAT event was sitting and mingling with strangers, discussing how we preserve art in our communities, while also strengthening it. One of our table mates described how her boyfriend had been pushed out of his current RiNo location and priced out of other options within the District.

As our communities continue to evolve, develop and grow, we need to find strategies that allow for inclusive growth. Often development occurs to stimulate economic growth in an area. How can we advocate for inclusive economic growth?

Just this morning I read an article by CEOs for Cities about the role of Economic Development Organizations (EDOs) in Inclusive Growth. This article underlines a different aspect of inclusive growth in communities: jobs. It argues that sustainable communities and inclusive ones exist when communities invest in job creation, job preparation, and job access. The article also outlines three major strategies for ensuring and achieving inclusive growth. These strategies being:

  1. EDOs have a vital role to play in achieving inclusive growth.
  2. Inclusive growth is not an add-on to business as usual.
  3. Inclusive growth requires a good ground game.

I feel there are contrasting strategies that can be employed to ensure that the neighborhoods we love, maintain the people, character and culture that exists within them today. First, as residents, activists and artists, we must work together to support strategies and policies that work towards this goal. Second, business owners and Economic Development Organizations need to work together to provide opportunities and jobs so that residents can stay within these communities.

It seems the bottom line is, there is no one strategy to mitigate gentrification. But if we all work together to improve our communities, we might just be able to strengthen the aspects of it that we love.

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