Hi Everyone-
So I would like some advise about limiting liability on a nightmare project. My company was brought in to create a condo parcel map. The condos are built and now are up for sale, but they cant be sold until the parcel map is recorded. The survey for their construction was done by a civil engineer and he found 4 property corners which fit within 0.4'. The civil gave me his data, I told the client I needed to do a boundary survey as just the 4 corners is not enough. I did a field survey tieing in 18 other property corners. The property is rotated resulting in the boundary being 6' off, with about $800,000 in condos built in the wrong position violating setbacks and some improvements are over the property line.
I told the client I need to do additional survey work and some $$$ to cover the costs of dealing with everything and he needs to sign a new contract. My original contract states:
"In the event that changes are made in the maps, digital drawing files or specifications by Client, which changes affect Professional Land SurveyorÛªs work, any and all liability arising out of or resulting from such changes is waived by Client against Professional Land Surveyor and Client assumes full responsibility and liability for such. Client agrees to indemnify Professional Land Surveyor against any and all liability, loss, costs, damages and other expenses which Professional Land Surveyor may sustain or incur as a result of such unconsented changes."
Any suggestions about language for the new contract or any suggestions about limiting liability moving forward with the project would be greatly appreciated
Given the severity of the custerfluck, I suggest retaining an attorney to help draft this contract. This is one instance in which even I wouldn't take the DIY approach.
I agree with Jim, call your attorney. Also, it seems that your firm didn't do the actual stakeout, so what exactly would they be suing you for? discovering the error of the civil engineer's stakeout?
I agree, however if one has unlimited financial resources there is no such thing as a "bullet proof" contract.
It doesn't really sound like YOU did anything wrong...I like Jim's advice about getting the attorney, but I can't imagine there will be anything that bad that comes of this. There will probably be some fines and variance requests/grants along with the fees. It could be one of those situations where everyone gets sued and then whoever can't get out of it is left holding the bag.
What might you be sued for? You discovered, not caused an error.
They would be suing because you obstinately caused them a huge financial loss by not going along with the original survey, thus delaying the sales and causing undue hardship.
Personally I would get out now, but if you continue I'd sure have the best attorney in town on your side, and on retainer.
I'd also consult with the best of your peers, and send them a $10 retainer to make sure they cannot be called as an expert witness against you.
I'd also consult with the best of your peers, and send them a $10 retainer to make sure they cannot be called as an expert witness against you.
Now that is fast thinking. I cannot tell if your serious or not. Actually isn't a bad idea.
I am very serious. As I said I would bail out of the survey - no sense going into a project where you just know there is going to be major fallout and they are going to be looking to blame anyone involved, including the guy in the food truck that used to park in the street. If the (good) survey proceeds, tie up any possible expert witnesses by consulting with them and sending them a retainer. I learned that trick from my dear friend Billy Keith.
Come one guys, who ever heard of a good, upstanding engineer blaming a surveyor for their errors? Don't worry about it, you did nothing wrong. (/sarcasm off)
You will be sued because you allowed your name to be connected to the project. Did you have any link with the project before the engineer went to town off of 4 points? You could be liable for not stopping him. You could be liable for not surveying the parcel a the first instant and conveying that info to all concerned. The client could argue that there is no change in the project, as it was built per the plan. Thus you are liable for fixing anything you find wrong.
From your initial statement the firm appears to have created the condo map prior to construction. By creating a map from other's information the firm is now owner of all the warts.
Get your resume up to date and keep it current.
Paul in PA
Paul in PA, post: 338980, member: 236 wrote: You will be sued because you allowed your name to be connected to the project. Did you have any link with the project before the engineer went to town off of 4 points? You could be liable for not stopping him. You could be liable for not surveying the parcel a the first instant and conveying that info to all concerned. The client could argue that there is no change in the project, as it was built per the plan. Thus you are liable for fixing anything you find wrong.
From your initial statement the firm appears to have created the condo map prior to construction. By creating a map from other's information the firm is now owner of all the warts.
Get your resume up to date and keep it current.
Paul in PA
Don't mind Chicken Little here. Not everyone will be providing you with coherent, well-reasoned advice.
In today's world, everything is someone else's fault, and by gum, they are going to pay! I fall into the category of those who believe that you can be named in a suit if you have had any connection whatsoever with the overall project. You can be as innocent as possible but that will not keep your name off the list of those being named in a suit.
Good point and, from what I understand, many times it is cheaper to pay a settlement than the legal fees to fight it; even for someone completely innocent of any wrongdoing.
I think the lawyers call them "shotgun suits". Instead of one bullet headed at one potential victim you have dozens (hundreds?) of shot spreading wide to hit as many potential victims as possible. Someone in that group, if not several someones, will pay.
Speaking of law suits, I was on the winning end of one. One of my cell phones for a few years was with AT & T Mobility. Somehow they managed to overcharge between 2010 and 2015 by charging customers more for the Kansas Sales Tax portion of the bill than what they paid out to the State. Someone figured this out and the lawyers took the bait. I had minimal bills on that cell phone and it wasn't used during the entire period of wrongdoing. Nevertheless, I am one of the big winners because AT & T lost. After the lawyers got their cut, I received a check for $0.24 as my share of the final payout.
Holy Cow, post: 339012, member: 50 wrote: ...Nevertheless, I am one of the big winners because AT & T lost. After the lawyers got their cut, I received a check for $0.24 as my share of the final payout.
Yep, we all know who the only real winners in a lawsuit is; (hint) it's neither the litigant nor the defendant.
Tom Adams, post: 339015, member: 7285 wrote: Yep, we all know who the only real winners in a lawsuit is; (hint) it's neither the litigant nor the defendant.
The big winner is the U.S. Post Office charging 49 cents to deliver a 24 cent check.
I was once named in a lawsuit because I took the original cross-sections on a borrow-pit. An excavation contractor was suing the general contractor over the amount of unclassified excavation that had come out the hole. It was other surveyors that performed final cross-sections, that apparently indicated differing volumes.
I thought it was pretty much BS because both the plaintiff and defendant were actually relying on my cross-sections for their original measurements. The plaintiff's attorney contacted me for a copy of the original notes (they apparently had a copy of a copy I had initially delivered to my client, the GC). I told him he'd have a better chance of getting anything from me if he hadn't named me (and everybody else that ever even LOOKED at the borrow pit) in their law suit....he sounded a little chagrined and said he call me back.
I was dropped from the suit not long after.
Travis P, post: 338952, member: 10546 wrote: So I would like some advise about ....a nightmare project....
A nightmare for the engineer, the developer, and their insurers. Not so much for you. Presumably some insurance company is paying the bill and you should be in the tall clover for some time to come.
The best analysis so far. Documenting someone else's screwups is lucrative work. Retainer. Time and materials. Good work if you can get it!
