ALTERNATIVE DISPUTE RESOLUTION
ASCE Policy Statement 256
Approved by the Committee on Professional Practice on July 20, 2002
Approved by the Board Policy Committee on September 12, 2002
Adopted by the Board of Direction on November 2, 2002.
The American Society of Civil Engineers (ASCE) supports dispute avoidance and alternative dispute resolution techniques (arbitration, mediation, dispute review boards and mini-trials) to bring disputes related to engineering and construction to a fair, timely and cost-effective conclusion without litigation.
Resolution of engineering and construction related issues through litigation is not consistent with orderly project development. Time delays and the cost of litigation are frequently disproportionate to the issues involved and the major portion of costs and effort is usually expended on non-productive activities. Alternative dispute resolution techniques are accepted in the industry and their use continues to grow. There is a need to continue development of methods that produce timely and cost-effective engineering and construction dispute resolution.
ASCE has participated for many years in the National Construction Dispute Resolution Committee of the American Arbitration Association and has contributed to many of the techniques currently used in alternative dispute resolution procedures. ASCE believes barriers to cooperative relationships and voluntary resolution of disputes can best be eliminated if all parties -- as a matter of policy, in advance of any problem or dispute -- pledge to consider using good dispute avoidance and resolution practices in their project relationships. There is a need to seek out methods of dispute resolution that speak directly to the problem in a fair, immediate and cost-efficient manner. The use of arbitration, mediation, dispute review boards and mini-trials have achieved these objectives. The continued development of effective methods is encouraged.
PREVENTION OF FRIVOLOUS LAWSUITS
ASCE Policy Statement 364
Approved by the Committee on Professional Practice on July 20, 2002
Approved by the Board Policy Committee on September 12, 2002 .
Adopted by the Board of Direction on November 2, 2002 .
The American Society of Civil Engineers (ASCE) believes that the prevention of frivolous lawsuits involving civil engineers is beneficial to the profession and the ultimate users and beneficiaries of engineering services. ASCE encourages and supports efforts at the state level to adopt legislation similar to California 's "Certificate of Merit Law" (CCP 411.35), and as similarly adopted by several other states, as a means of controlling the filing of frivolous lawsuits.
Engineers are facing a liability crisis. The apparent cause of the crisis is changes in attitude: that of the general public and owners, who increasingly feel they should take no responsibility for the risks we all face in daily life; that of juries and judges in making excessive awards; that of insurance companies who settle out of court to save time and money; that of engineers who shy away from going to court; and that of lawyers who prosper from litigation.
The liability crisis has resulted in increasing numbers of suits naming engineers as defendants, and suits between others that name the engineer as a third party, under the so called "shotgun" theory of litigation. Engineers generally consider a frivolous suit to be one in which it is unlikely that the plaintiff can prove a case. Legally, however, "frivolous suit" is often more narrowly defined as one which is so totally without merit on its face as to show bad faith, harassment or other improper motive on the part of the plaintiff. The distinction is significant because the courts generally have been reluctant to infer bad faith in all but the most egregious cases. Often in the case of third party suits, the engineer's involvement may be without merit; but the suit itself is not frivolous. In any event, the engineer is required to undergo the annoyance, inconvenience and expense of defending the suit and to risk potential damage to their professional reputation.
The approaches to discouraging frivolous litigation include:
The "Certificate of Merit" statute requires that attorneys for a plaintiff, prior to filing a suit, certify that an impartial design professional (practicing in the same discipline as the defendant) has been consulted and has agreed in writing that there is "reasonable and meritorious" cause for the complaint. In most cases failure to file such a certificate constitutes grounds for a judge to strike the case.
With the exception of pre litigation screening, all of the approaches to avoiding frivolous litigation require the diversion of the engineer's resources from engineering to some other process to be successful. While they may allow the engineers to protect their reputation and recover their costs (and should, therefore, be supported on this basis), they do not serve the profession as well as pre litigation screening. Also, it has been well documented that counter suits generally have not been effective against frivolous suits, although there is a trend of growing willingness on the part of the courts to police frivolous litigation by awarding attorney's fees and other litigation costs to prevailing parties. However, the California "Certificate of Merit" Law has been shown to have reduced malpractice suits and helped to increase dismissal judgments. There is also evidence that it may encourage the dropping of defendant design professionals from malpractice action. The cost of the reviews required under the law ranges from moderate to insignificant.
PROFESSIONAL LIABILITY/TORT REFORM
ASCE Policy Statement 318
Approved by the National Engineering Practice Policy Committee on March 11, 2004
Approved by the Policy Review Committee on March 12, 2004
Adopted by the Board of Direction on May 14, 2004
The American Society of Civil Engineers (ASCE) endorses comprehensive tort reform that includes these elements:
The U.S. legal system has evolved to a point where excessive litigation, including frivolous lawsuits, is often encouraged. Moreover, findings of liability increasingly bear no relationship to the proportion of fault in a case, and astronomical damage awards for unquantifiable claims are frequently granted. The exponential growth in litigation against businesses and professionals, coupled with excessive and unreasonable jury awards, has led to dramatic increases in insurance premiums, reduced policy coverage, and even outright cancellations of professional liability insurance coverage. A growing number of professional engineers, including those with little or no history of litigation ever brought against them, have found that professional liability insurance is a substantial cost of doing business. In addition, efforts to advance innovation, new products and designs are inhibited by the current legal climate.
ASCE is very concerned about the adverse economic impact of the nation's litigation crisis and escalating liability insurance costs on the civil engineering profession. These adverse economic impacts affect the availability and affordability of professional liability insurance needed for the orderly and responsible conduct of business, including engineering services, in the United States .
INDEMNIFICATION FOR PRO BONO SERVICE
ASCE Policy Statement 443
Approved by the Committee on Professional Practice on July 11, 2003
Approved by the Board Policy Committee on September 17, 2003
Adopted by the Board of Direction on November November 11, 2003
The American Society of Civil Engineers (ASCE) endorses state legislation to protect professional engineers from liability when providing pro bono services to charitable causes and those in emergency situations.
ASCE encourages its members, as individuals, to provide pro bono expertise and professional services to charitable causes and those in emergency situations. Members who provide professional services pro bono for ASCE endorsed programs are covered by the Society's liability insurance. However, pro bono services provided by an individual in emergency situations or to charitable institutions outside of ASCE's endorsed programs are not covered. The engineer, in emergency situations, may be called upon to make decisions with little or no opportunity for study, evaluation or even identification of alternatives should not be held to the same standard of care that would be used in evaluating his/her actions under normal circumstances. Legislation is needed to protect the engineer under these circumstances.
Engineers have the technical ability to assist in emergency situations and to aid charitable undertaking. The problem comes in assuming significant liability for actions taken by the engineer without benefit of insurance or laws to protect the engineer. The medical and legal professions have been successful in some states in having legislation enacted to cover similar situations. The engineering profession needs to be treated in a similar manner. With protection, engineers will be more inclined to provide pro bono services.
Protection as proposed would not relieve the engineer of responsibility to act in accordance with the Code of Ethics. The engineer must continue to act within his or her appropriate level of expertise, with due recognition of the limitations of that expertise.
Copyright 2005 Richard Cheeks
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