We live in such a ligations society and with the decline in the need for surveys by professionals; I think I may have found a niche!
I am going to sell a product.
Background….
I proposed to provide a topo map of a planned movie set for what should be another western circa 1869.
My proposal was raked thru the coals by the parent of the production company’s attorneys with some pretty outrageous insurance requirements. Simply put, we can sue you but you can’t sue us. They wanted the additional insured to include the production company and the parent company and all of their affiliates, officers, agents………..blah blah blah.
I countered with proof of our current insurance coverage and I would name them (production company only) as additional insured without increasing my fee hoping they would accept it as is. I said for me to meet their insurance requirements I would have to increase my proposal by $20k to accept the additional exposure if that’s the path they wanted to take. Then in closing of my email I offered another option; I can sell them a map similar to what you would buy at the book store but in a digital format. A product, not a service.
I just got the confirmation to supply them with an invoice for a “Digital Map”. They have made the order and I will deliver the product via email. Of course I have thought about disclaimers and the like, it will included language to the tone of once they open the file, my liability will be gone. Use at your own risk. My attorney will have that language in my mail box Monday AM to attach to the invoice. The product will be emailed after payment is received and it will also repeat the same disclaimer language. Have you ever read the disclaimers for GIS maps? That's what I'm providing, but more accurate.
Time to go to bed and get some rest so I can collect some data over the weekend to make my delivery date. Sure is nice to have the opportunity to discuss this with our legal thru the week. Go GIS!!!!
Will I be the first PLS to sign and seal a GIS map? I compiled it, it's my report, my state requires me to sign and seal any survey related report or opinion.?.?.? Maybe I should let my staff do this without me involved.............HUMMMMMMM!!!
Guess I better think this one thru a little more. What say ya'll? Give me your insight, please!!!!
Map, made by a surveyor, stamped?
What's the difference between a survey map and a GIS map?
Better check the state statutes. Made by a surveyor, a map product has certain strings attached, as far as reliance on your opinions, no matter whether it is an ROS or a written opinion with no lines or measurements. The mere fact of being licensed sets certain expectations that you cannot disclaim away. Your statute contract with the licensing body can outweigh whatever disclaimers you try to establish.
Made by & stamped by, well golly, that inked (or electronic) stamp is a modern wax seal and now your map is a commercial instrument, that has value even if the contract falls thru ... so I read on the internet somewhere. When I read that one, I thought, NOW it makes sense why the old timers say put your shiny new stamp in a drawer for a year or two before you use it. Now I have to look up what the stamp really means in commercial law cases and the UCC. Check back next year, might know something.
For what purpose are they using this map anyhow?
Why should you certify to anything / anybody out of the ordinary ?
Attorneys are always looking to hang more liability on you. It's their inside joke, their way of counting coup on each other and all the little people who haven't a clue. They get you worried that the deal won't go, so that you feel pangs of loss about the resources you've already committed, anxiety about getting paid, etc., unless you take on this extra liability... Adding five pages of additional certifications about how all the heirs, successors and assigns can sue you in perpetuity but you can't sue them ever, well, that's just them trying to run you down in the crosswalk. Later they will brag over drinks that they got you to take liability for the national debt and any sightings of flying purple-people-eaters in, on, under, or above the earth before, during, or after the calendar year. It's not even about you, it's about sharpening their knives for the next potential big deal.
The way to deal with them is be prepared to walk. One standard certification, EVER. Get clear on that certification with your E&O. Then when the client's attorneys start pulling this stuff, you say sorry, my E&O won't cover it, unless you want to buy additional coverage. And still, don't waver from your standard certification.
A really good "white hat" attorney told our Chapter meeting a few years ago that every legal action against a professional happens in the same exact way:
"SOMEONE GIVES YOU A SOB STORY AND YOU CHANGE YOUR PROCESS."
So, if you are thinking of changing your process, what unforeseen pitfalls await? Who is setting traps for you with all these extra certifications?
When they tell you they need this extra liability on your part or the deal will fall through, shrug and let it fall through. You just have to put on your thick face and play chicken with them. If the project involves a timeline, they may bluster about suing you for delays, but really, what are they gonna do, start over? Gary Kent tells some great stories in his ALTA seminars about how on the morning of closing, people are suddenly very agreeable to the standard certification IF you make clear that you will walk otherwise.
Sorry to bust your bubble. But if you want to impress your client, why not provide a laser scan point cloud or another laser scan deliverable.?
This type of lack of forsight is the bigger issue with our profession.
Sorry for busting on you.
How is a laser scanner going to help his contract issues?
I don't see Keith trying to short cut anything.
He has a client that wants something and he wants to provide that.
He is going to do the same job as before.
He is still going to Quality Control the job as before.
They are going to get the same delivery as before.
He is going to stand behind his product as before.
He still has his business insurance and his E&O insurance.
He is going to sign and seal his product as always.
He just does not have to get an additional $20K of insurance to meet the insurance items demanded by his client's attorneys.
His business plan is not affected by the outrageous demands of insurance.
He does not need this level of insurance coverage to provide his services.
If he was providing 'STUNT SURVEYORS" then these levels of insurance may be appropriate.
Good thinking, Keith!
To lower your need for high insurance coverage, lower your need to use the insurance.
If you come to the table with a survey with 2,000 points what are the odds of the information being interpreted correctly?
Now come to the table with a laser scan survey for the same area with 1 billion times more points, or 2,000,000,000,000 points what are the odds of the information being interpreted correctly?
Luke, I took out the term "service" and replaced it with "product". Now, I don't have a proposal or contract. I have a paid invoice. You are correct about the rest. Nothing different in what I'm doing or providing to them.
Good point. A more complete map makes for less chance of them using it in a misinterpreted way, more likely they can do what they want to do.
To sell them a "GIS map", in a digital form, "like in a book," suggests to me that they are going to get a pretty picture that they could have gotten in a more useful CAD file except for the difference of opinion over the contract conditions. So first thing they do is digitize it back into a CAD file and build something. Seems like more chances for data to get lost or muddled in translation. Maybe they only decided to buy your picture book map to keep them on schedule, and they will "use someone else" for the construction? I'm just guessing, they may not build at all, maybe they are just looking for flat spots to park the trailers.
Three issues I see here:
1) keeping the customer happy & getting them what they need so they can continue to live their dream;
2) not letting their attorneys give you spurious liability as part of their dominance game (the sob story so they can live their dream);
3) not taking on UNAPPARENT STATUTORY liability by changing your process (the deliverable), even if the fieldwork & QA up to that point is unchanged, to something new and different.
Seems like it needs a stamp simply because it is topography, unless your state has some kind of "incidental surveying by engineers" clause. If a GIS company started selling design-grade topos, would that be legal?
We are all trying to think outside the box in our efforts to hunt & gather in the current economy. Not trying to make anyone wrong here, Boss. Every day I learn how much more there is to learn.
> Luke, I took out the term "service" and replaced it with "product". Now, I don't have a proposal or contract. I have a paid invoice. You are correct about the rest. Nothing different in what I'm doing or providing to them.
Except... that you are now open to claims of product liability instead of professional negligence. The fact that you have a contract to provide a "product" as opposed to a "service" only makes it harder to prove the terms of your agreement with the client. Written contracts are always better than oral contracts.
JBS
Guess I should make the "product" top notch and not sloppy and with defaults or defective.
Life is risky no matter what you do. Now, under these terms, I can sue them for their negligence as before under what they wanted me to agree to, I couldn't.
It's a simple topo for a temporary movie set. Prepaid. I have confidence I will get them what they need and want. I'll stand behind what I give them and not get a chip on my shoulder.
