Looking to revised surveying proposal contracts sent to clients, wondering if anyone else tries to limits their liability on amount of claims within the contract. I haven't had any problems in the past, I do my best professional effort to complete the work correctly.
this is what I have started to pull together. All disputes, controversies, or claims arising out of or relating to this contract proposal shall be limited recovery to amount of payment received for professional land surveying services.
You can do that but whether it will hold up if you are sued is questionable at best. Attorneys make a career of defeating those types of clauses.
CLSA has a limit number in their standard contract but it isn't tied to the amount of the fee.
Question
What additional benefit is the client receiving if she agrees to accept this addition to your standard contract?
daw
Sorry, but I am pretty sure this will make no difference. Damages are Damages. Otherwise this would be in every contract for every professional and no one would get sued. Why would we have E&O insurance if we could just do this?
I know of one surveyor with a standard multi-page contract who went as far as having the client initial each paragraph stating they understood, and he still lost.
The closest we come is at least naming the jurisdiction and laying out that the contract can be cancelled at any time by either party, with notice, with payment due for any work done to that point.
Contracts
There is at least one recent case out there that covers this topic. It's an Arizona case from about a five years ago. [1800 Ocotillo, LLC v. The WLB Group, Inc., 196 P.3d 222 (Ariz. 2008)]
And, my engineering friends use similar terminology in numerous contracts. Please remember: The threshold for what can be included in a contract is simply anything that is legal.
Problems arise when the contract turns in to an "adhesion" contract. (Fondly known to some as a pig contract.)
daw PE LS
Some attorneys
I have entered into agreements with attorneys using a contract that set a limit on liability. Some signed the agreement in the blink of an eye, while other examined every comma. I have had several request the removal of the clause limiting my liablity. I would think that an unenforcable clause would be of no concern to anyone even an attorney and therefore not something to triffle with in negotiations.
There are rules relating to limits on liability. The professional cannot insulate themselves entirely with limits on liability. Professionals may not take unfair advantage of their lay clients.
As we know from our practice, THE FACTS and the applicable LAW makes all the difference in the world. So use a reasonable limiting clause and it may provide you more protection than not having one at all.
Here is a good article from POB.
I often use the Blaylock v. Smith case in my classes.
There are a few rules that are key to making a limit of liability clause stick. Based on what you describe I would guess that wording would not withstand judicial review. But that does not mean that no clause can withstand review. Do things the right way and you should be fine. (Just like Smith who won his case with Blaylock.)
Larry P
