Exposure to Litigation 2

[glass99]

What is the exposure of a consulting engineer with a contractor client if the contractor gets in a legal dispute with a sub contractor?

We have a potential project where our client would be a glazing contractor. The glazing contractor has a aluminum and glass system supplier with whom their relationship has descended to the point where they won't talk to each other. The essence of the problem is that it is a boutique complex project and the supplier is a plain vanilla outfit not set up for the technical challenges of three dimensional layout geometry etc. Its a design build contract, and they would like to hire us as consulting engineers to keep the design moving forward.

 

[IRstuff]

If it comes to suing, there are no guarantees; a typical scenario, like one where a kid was kicked off a team, and his father is suing pretty much everyone even remotely involved for $40M, may mean that you will be dragged into court regardless of your actual connection and contribution to the problem. It's then possible that the judge may rule that your participation is not relevant to the suit and kick you out, but you'd still have to have a lawyer represent you for that duration.

TTFN
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[MikeHalloran]

Either way, you'll be buying a car that you could never afford for at least one lawyer. Budget accordingly.



Mike Halloran
Pembroke Pines, FL, USA

 

[1gibson]

keep the design moving forward

If in a continuous circle between "complicated" and "possible for that outfit to manufacture" counts as moving forward, and you get paid by the hour, then I guess it sounds like a good plan...

 

[DRWeig]

Agreed. I have only been involved in two product-liability lawsuits. In each case, the suit was filed against everybody: Installer, seller, distributor, manufacturer, component manufacturer, and marketing firm.

Our lawyer explained that "forking" the entire supply chain allows all parties to "discover" everything related to the product and its installation from concept to service. Two or three of the parties were dropped immediately after discovery and depositions for obvious non-involvement.

Everybody else had to wait until settlement time. Neither case was decided by a judge or jury. Once everyone agreed on the proportion of blame to assign to each party, the settlement was divided. If the cost of your portion of a settlement is less than what your lawyer fees would be to fight it, you take it.

Best to you,

Goober Dave

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[glass99]

DRWeig + IR Stuff,

Understood that if a project has technical problems which affect the end user, the end user will sue everyone involved. In this instance, the contractor may sue the sub or the sub may sue the contractor over something like non-performance (e.g. being late on delivery) or non-payment. The building owner will not be involved. I would guess that design build contractors sue their subs all the time. My question is when this happens, do the engineers get involved or do they manage to keep it purely about money and contract.

And yes, we will be paid by the hour with no cap to help these guys out, which is nice, but not nice enough to make it worth getting sucked into litigation.

 

[Ron]

Keep in mind that litigation exposure and liability are two separate things....unfortunately the difference between them has to be determined on each project and you get the pay the cost of proving the difference on your project.

 

[IRstuff]

I don't see why you think you'd be immune. The first tier of product liability is a deficient or just wrong design, which means the engineers.

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[drawoh]

glass99,

This sounds like a good question to ask a lawyer. If the SHFT, you are going to need one.

This is an engineering site, not a legal site.

--
JHG

 

[Ron]

IRstuff...Construction and product liability are usually worlds apart in litigation. Different standards and legal proof criteria.

 

[glass99]

I probably will ask a lawyer, but my hesitation in doing so is that they are painful bureaucrats. They never tell you "it will be fine". Engineers think they are conservative, but they have nothing on lawyers. They will tell you:
1. Don't ever do a project because you will get sued
2. That you need a 300 page agreement which is going to take months to hammer out and your client won't sign.

 

[JedClampett]

On the one hand, you can't be so scared of litigation that you're paralyzed. But on the other, there's certain designs, like condominiums, that are so fraught with litigation issues that it's smart to stay away.
Have a contract, do your best, pay your E & O insurance and let the chips fall where they may.

 

[glass99]

JedClampett - thanks, that is the balance I am trying to get to.

 

[DRWeig]

One of my best supervisors in the early years said:

"Dave, every mark you put on that drawing and every letter you type in that spec creates liability. You gotta choose your comfort level and jump on out of it. Get busy."

Best to you,

Goober Dave

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[IRstuff]

"Construction and product liability are usually worlds apart in litigation"

Possibly, but if a deck collapses, wouldn't the owner start by suing the designer for a bad design, and the builder for poor construction?

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[1gibson]

If party A can't agree with party B, there is a clever solution. Hire party C to act as intermediary, and then both A and B can agree that everything is C's fault.

 

[cvg]

if a deck collapses, wouldn't the owner start by suing the designer for a bad design, and the builder for poor construction?

as Ron said, this is litigation exposure, not liability exposure. In most cases, everyone associated with the project (including subcontractors) may be named on a claim. A very wide net is cast. Everyone named will be subpeoned and required to produce files during discovery. They will all hire attorneys and spend time and money on providing the evidence. The various attorneys will all dig through the entire pile of evidence. At some point, it will be determined you were liable or not.