Tommy Young, post: 423158, member: 703 wrote: So if my doctor screws something up, I can start a lawsuit against him 50 years later?
My legal council at the Law Offices of Dewey, Cheatem & Howe says yes.
A person can not pass on their responsibility and liability when they sell their records and business to another
and
you do not take over an other's liability when you purchase their records and business.
When you take another work and incorporate it into your work you have accepted the liability that comes with that information.
When someone alters your work by adding to or taking away information to suite their own purposes, they may take on some or all of the liability.
0.02
Can you tell me how a tail policy works? Do you have to pay a premium on that every year or is it a one payment deal? If its just a single payment, how long does it last? For as long as the liability lasts (which for us is forever apparently).
Bow Tie Surveyor, post: 423037, member: 6939 wrote: It's the same deal in Florida. For your client, the clock on the statute of limitations doesn't start until the error is discovered (or should have been discovered). I think 3rd party liability is limited to 2 years.
Can you tell me how a tail policy works? Do you have to pay a premium on that every year or is it a one payment deal? If its just a single payment, how long does it last? For as long as the liability lasts (which for us is forever apparently).
Well, I'm not sure how to answer how it works. I can't get a straight answer from the insurance agent, go figure. It was my understanding, that a tail policy is a premium paid yearly, usually $100 or so, to essentially keep the former employer's insurance policy active. But at such a low premium because he wasn't producing more work and/or liability. In which case it would have nothing to do with our current E&O insurance. But since our policy is with the same company he had, and he never had a claim in 20+ years, they don't charge use for the tail policy. So, to answer part of your question, it's yearly, forever, and cost $0 as long as we stay with them. But now, the insurance company says it would affect our rates if there is a claim.
As an update to the situation: The guy has hired us to survey the remainder of the parent tract, and draw a plat for exchanging some acreage to fix this issue. Luckily, his sister owns the other parcel and is willing to work it out. And we get paid to correct it without a claim, or suit. At least that's where it all stands for now. With 20+ years of records though, this kind of thing could certainly come up again. It is unlikely to get this luck on the next one, so any brainstorming on this kind of situation is appreciated.
Chris Bouffard, post: 423128, member: 12313 wrote: See the above comment. The same holds true with medical malpractice. The clock starts running upon the discovery of the error.
Your question has allot of hidden issues. My first thoughts are that if you didn't buy the company you didn't buy the liability. Had one of you signed the erroneous plat that could have been a separate issue. In matters like this I know it's wrong to make assumptions but if you did not hold an equitable financial interest and were employees only, having not been the individuals signing the erroneous plan than I can't see any liability issue if you staked the plat correctly.
The other issue is that you only purchased the records and equipment only. Purchasing the records does not make you responsible for their accuracy unless one of you signed them. Once you have signed them you have certified that they were prepared under your direct supervision and are therefor responsible for any errors or omissions.The fact that the error occurred before any of you were signing the plans and assuming that you have no partnership status in the business would release you from any liability. If you did in fact have an interest in the company you might be found liable on a proportional basis related to the level of equity you had in the business.
There are two other issues to consider as well. I'm sure your former employer had E & O insurance and if he did, the error would be covered under the policy that was in force when the plat was issued. The client should, in fact, reach out to your former employer to obtain the information as to who the insurer was at the time of the original survey. The State Board should be able to supply the contact information, especially if, as you say, his license is still valid. Most states have that info on their web sites as a matter of public record.
The last issue I see is that for there to be anything actionable in civil litigation the client would have to prove he was damaged financially or physically as a result of the defective plat. You have not included the details leading up to your engagement to stake the lines but it would seem to me that if he is just now having the lines staked some 16 years after the plat was issued it is probably more of an annoyance than a damage. If he is looking to sell the 2 acres now the subdivision line could be corrected (in theory, depending on zoning requirements and local ordinances) to exclude the existing dwelling (or include it, depending on intent) and the problem goes away without need for litigation unless the 2 acres can not be achieved on a new plan. The liability would then be reduced to the financial loss generated by the reduction is the lot size.
I have one remaining question, was the subdivision plat recorded within the statutory time limits? If the client never recorded the plat then all bets are off for him to have any actionable cause.
It's an interesting situation but I can't see how you would assume any sort of liability for the work done in 2001. The part that irritates the hell out of me though is that insurance companies will often settle out of court rather than defend their paying client to cut their own legal expenses. Case in point, a fellow PLS & friend of mine staked out a house that was approved as a rancher on slab. The client/builder decided to add a basement without checking on seasonal high water tables or modifying the plot plans. The foundation was installed based on my friend's cut sheet graded to the finished first floor elevation. The newly constructed home was sold in the peak of summer and turned out to have a wet basement the following spring so the homeowner ended up suing everybody involved in the process and my friend's insurance company settled for $25K to walk away from the case rather than defend the work they were paid to insure.
The error occurred before either of us (current owners of the new company) were licensed. We owned no stake in the company and I was a rodman, not even crew chief yet. My partner wasn't even an employee of that company yet. Neither of us signed anything. We intentionally, for this exact reason, purchased assets only. We basically bought records, equipment, a phone number, and a no compete clause. Started a new company, with a new name.
The division plat was recorded a week or so after the work was done in 2001. A month or so later, an update was done, to show the improvements for mortgage purposes. Still the original dwelling was not shown. How this got missed not once, but twice, blows my mind. It was a family cut from father to daughter. The daughter got the 2 acre parcel (the erroneous plat) and the father kept the remaining 6 acres, until a month ago. The father was the client in 2001. He is now deceased, and his son bought the 6 acres from the estate. He hired us to mark the line between the two tracts so he could see if there was room for an addition. Obviously, there wasn't and the error was discovered by myself at that time.
