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You Have Questions? NSPE Has The Answers.
NSPE members are able to ask professional practice questions of their colleagues and peers. NSPE members also have access to publications and state and national staff to answer questions on ethics, licensure, liability insurance, contract documents, etc.
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Licensure, Ethics, and Legal Hotline for Members
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Recent Q&A in Legal Beat in NSPE's flagship publication PE:
Question: I understand the term "as-built drawings" is now referred to as "record drawings" in many of the published standard forms of agreements. Is there a definition of that term? (South Dakota)
Answer: Yes. The Engineers Joint Contract Documents Committee agreement between Owner and Engineer for Professional Services (EJCDC E-500) defines "record drawings" as the "Drawings depicting the completed project, prepared by Engineer as an additional service and based solely on Contractor's record copy of all drawings, specifications, addenda, change orders, work change directives, field orders, and written interpretations and clarifications, as delivered to Engineer and annotated by Contractor to show changes made during construction."
Question: I have a small firm that performs town engineering services for a local government in a nearby community. Since I am acting as and for the benefit of the town as the town engineer, if for some reason I am sued, am I protected from third-party suits under the doctrine of sovereign immunity, which provides tort immunity for public entities against lawsuits? (Indiana)
Answer: In most states, the answer is no. A recent case in Ohio, Trucco Construction Co. Inc v. Fremont (2013 WL 494353, Ohio App. 6th Dist, Feb 8, 2013), is instructive. In that case, when an engineering firm was retained to perform services on a construction project and was sued by the general contractor, a trial court held and an appellate court agreed that the engineer was not an employee of the city for purposes of the statute providing immunity from tort liability to the city and its employees. According to the court, the sovereign immunity statute did not extend to independent contractors such as the engineering firm. Similar results have been reached in North Carolina and Kentucky.
Question: I was recently presented with a contract from a client that stated, "Engineer shall comply with all laws, regulations, codes, and standards." Is this a typical provision in a professional services contract? (Missouri)
Answer: It may not be typical but it is not unusual. When confronted with a request for absolute compliance, engineers should communicate their concerns about the wording. Use of the word "all" expands legal and professional obligations and may leave engineers vulnerable to claims of negligence. As we all know, there are thousands of laws, regulations, codes, and standards that relate to the engineering design and construction process. All are subject to change and many are open to interpretation, but not all apply to a given project.
Question: I understand that under state law, a licensed professional, including an employee of an engineering company, is personally liable for his or her negligent acts. Can you provide an example of a state law that identifies this principle? (South Dakota)
Answer: Yes. Under the Montana Code (Mont. Code Ann. Section 35-4-404), an individual who renders professional services as an employee of a professional corporation, including a professional limited liability company, is liable for any negligent or wrongful act or omission in which he personally participates to the same extent as if he had rendered such services as a sole practitioner. However, an employee of a professional corporation is not liable for the conduct of other employees unless he is at fault in appointing, supervising, or cooperating with them.
Question: I have a question concerning the date accompanying my engineering seal on an engineering document. If I make changes to my previously sealed document, how do I indicate the changed date on the document? Do I need to change the original date accompanying the seal? (Arizona)
Answer: According to Arizona State Board of Technical Registration, if an engineering document is revised by the originating licensee after the sealed document is signed and dated, that licensee may either a) add language indicating the date, nature, and scope of the revisions, or b) reseal, re-sign, and redate with the current date. However, it is not acceptable to alter the original date accompanying the seal. When multiple sheets in a set of professional documents are individually sealed, only those revised sheets need to be resealed and signed. The cover sheet for the set does not need to be resealed unless the cover sheet has been revised.
Question: I noticed that some state laws will take disciplinary action against individual professional engineers who have engaged in "gross negligence" in their professional practice. Is there a good definition of the term "gross negligence" in a state PE statute to which you can refer me? (Utah)
Answer: Yes. As an example, the Wyoming Professional Engineering Law defines "gross negligence" as "a substantial or habitual deviation in professional practice from the standard of professional care exercised by members of the registrant's profession, or a substantial or habitual deviation from any technical standards issued by a nationally and/or state-recognized professional organization made up of members of the registrant's profession, or a substantial or habitual deviation from requirements contained in state laws, board regulations, local ordinances, or regulations related to the registrant's professional practice."
Question: I am a sole proprietor practicing as an individual in my state. I understand many states have a requirement that in addition to an individual being licensed, the practice entity must also be licensed. Does Louisiana have such a requirement? (Mississippi)
Answer: According to the Louisiana Professional Engineering and Land Surveying Board, individual sole proprietorships that bear the full name of the owner who is a licensed professional are not required to register as an entity with the board. However, sole proprietorships that do not bear the full name of the owner who is a licensed professional must be licensed with the board as an engineering firm. If the owner operates his business through an entity (e.g., corporation, limited liability company, partnership), then it is not a sole proprietorship and must be licensed by the board as any other firm.
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