Making the Most of Opportunities

As many of you may know, I have moved away from Denver. This is my last official blog post as an AIA Colorado Emerging Professional. Three months ago, I was presented with an opportunity to move to DC with my firm. It was one of those instances where the stars couldn’t have aligned better had I tried to plan it myself. If you know me, then you know I do try to plan it myself. In letting opportunity guide my path and watching this unfold, I have now identified key lessons for those of you that might be making a big transition yourself.

  • Opportunity may come knocking but that still doesn’t mean you sit back and relax. As a part of the move I had to research what salaries were in DC, what the cost of living increase is and if it was even going to be possible to maintain the lifestyle I had come to love in Denver. As they say, where there is a will there is a way. You need to put in the leg work, ask the questions and take action. You are your own best advocate. My move happened rather quickly, but it was because I had prepared along the way and knew what I was hoping to get out of the opportunity.
  • Once you move, life can be a bit daunting. You don’t have your regular friends, you may or may not move to be closer to family. In my case, it is the exact same distance as before (12 hours) but in the opposite direction. Social media is a beautiful thing and when used for a move, can open doors you didn’t know existed. Upon the announcement of my move, I reached out to junior high friends, high school friends, undergrad friends, grad school friends, conference friends and professional friends. Once again, this proved to me that networking and maintaining relationships is one of the most important things you can do. In many cases, I haven’t talked to these people in years. But it is amazing how meeting up with an old undergraduate architectural school friend in an unknown place can make it feel a little more comfortable.
    • TIP: When you hear from someone or are connected to someone else and say “let’s get together”, follow through! It will make your new place feel a little more like home.
  • For me, being involved and having a community is what drives me. I knew that in moving, I would have the opportunity to start over on my commitments, broaden my horizons and embrace new experiences. I also knew it meant leaving what was comfortable. So I brainstormed what was comfortable and found a group of University of Illinois Alumni called the DC Illini. They happened to have a volunteer opportunity at the DC Central Kitchen, a community kitchen engaged in food recycling and meal distribution programs. I wasn’t sure if I would meet anyone, if these alumni would be my age or what, but I figured this was a great way to get involved in the DC community and become a little more comfortable with being uncomfortable. It was only a 3-hour commitment. It was an amazing experience for a really amazing organization. And I met a few women who had graduated around the time I did who happen to work down the street.IMG_0216
  • Just say yes! My current roommates, who happen to be my Denver roommate’s parents, were having a dinner party on Monday evening. They invited me because the crowd was going to be fellow coworkers who were around my age. I went and made some connections with people doing different things than me. What’s funny is they all come from the volunteer and non-profit world. (Side note: They were throwing around acronyms and I gained a little insight into what it must feel like for non-architects to be around a group of architects.) I met a woman who is using design strategy to find solutions to poverty and marginalization in international communities. She was curious about my work as a trained designer and how that could potentially influence the work that they do.

Moving across the country, moving to a new company or going back to school are big changes for anyone. I have had a few opportunities to start new chapters in my life and it is through each start that I get a little more comfortable with the unknowns of new places and new people. But the key is to really build on the connections you have from previous chapters. Keeping all options on the table gives you the chance to create the new life you want to live.

With that, I close a Denver chapter and will hold dear the relationships and networks I built in Colorado. I already miss the architectural community and the EPs that I worked day in and day out to advance the architectural profession.

Thanks for the opportunity to guide this blog and become a leader among a group of such great leaders.

Best, Korey

AIA Denver Roundtable – Sign Up Now to have your voice heard!

As the Outreach Coordinator for the AIA Denver this year, I wanted to share a unique opportunity to help shape the AIA Denver’s 2017 agenda re: issues and initiatives that might benefit Denver’s collective A&D community.
As an AIA member, please consider signing up for our first AIA Denver member roundtable on April 11th from 4-6pm to share your important and unique voice as well as to learn about opportunities to become more involved re: issues of advocacy that directly impact our practice and Denver’s evolving built environment:
Thank you for your time and consideration!  Hope to see a wide cross-section of Denver’s firms and voices at this important event.

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.

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.