The Oregon Surveyor | Vol. 38, No. 4
14
From a professional liability perspective, where has the
exposure occurred? Following a conversation with Laura
Ledbetter, account manager for Hall and Company on the
potential situation, we discussed the following:
• In this scenario, claims exposure may arise because the
fenceline surveyor can be shown to have “exhibited a
standard of care that is below what is usual and customary”
for other surveyors practicing in the area. The law holds
professionals to a distinct level of care. A standard of care
provision in a contract has proven to decrease exposures
that could lead to a claim. A well-written standard of care
provision should conform to the prevailing definition for
professional negligence in the jurisdiction of the project.
For example a common standard of care provision might
contain the following language:
The Surveyor shall perform its services consistent with
the professional skill and care ordinarily provided by
Surveyors practicing in the same or similar locality under
the same or similar circumstances. The Surveyor shall
perform its services as expeditiously as is consistent with
such professional skill and care and the orderly progress
of the Project.
• Further, in the absence of a written contract the likelihood
for claims exposure increases as the contract would have
spelled out the scope of services and could also include
disclaimers regarding any unwarranted conclusions that
the client might draw from the results. A well-written
contract is the best first step a Surveyor can take to
significantly manage the risk of a claim against their firm.
• As a general rule there are four broad issues that at a
minimum should be expressly addressed in every contract:
1. Description of the project
2. Surveyor’s scope of services
3. Surveyor’s professional fees
4. “Legal” requirements such as indemnification and hold
harmless, insurance requirements, copyright &
document ownership, right of assignment, site safety,
and dispute resolution, to name a few…
• In this scenario, an approximate corner was set so that the
fencing contractor could do their portion of the job. The
establishment of “approximate corners” or temporary
stakes may cause “a misunderstanding by clients and the
public resulting in unfulfilled expectations,” increasing the
risk of liability claims exposure. “There is a certain element
of detrimental reliance by the client anytime a professional
performs a service.” Setting temporary stakes seem
intended to connote something less than an accurate
location of the boundaries, “but that does not prevent the
client from bringing a claim for additional cost, loss or
damage if there is a subsequent property dispute!”
From my own perspective, attempting to avoid the statutory
requirement for filing a record of survey by setting “non-
permanent” marks and thereby reducing costs does a terrible
disservice to the public and creates a ripple effect that radiates
back through the public record by creating “color of title” that
is unwarranted. This sort of behavior is unprofessional and
does nothing to create the kind of perceptions of our
profession that we desire.
How many times have you encountered fences in the field
that fall within close proximity to the boundary you’ve been
asked to resolve? How many times have you wondered how
they got there and under what circumstances? How many
times have such fences been in existence for longer than the
statutory period required to raise the specter of an adverse
claim? The same is true for monuments established by long-
absent surveyors who never recorded a survey or left behind
their records after they were gone.
I can’t stress enough the importance of doing a
thorough
job
of research. When faced with a particularly complicated
boundary resolution where the intentions of parties is
virtually lost through the passage of time, get creative in
thinking about where land records might be found. From my
own experience, there are several sources of information that
you may not have considered:
• The offices of the City Engineer or City Surveyor
in metropolitan areas.
• Living relatives of now deceased licensed land surveyors.
• Heirs, assignees or relatives of property owners who once
lived in the area around the time that original conveyances
were created! How many times have you watched
“Antiques Roadshow” and seen firsthand some of the
family memorabilia that has been saved over many
generations?
• State or local historical societies.
• Local museums.
• The oldest living resident who has resided in the area
the longest.
There may be other sources of information specific to a
particularly difficult survey. These sources may best be
discovered through networking within the local surveying
community. As stated in one of my previous articles, doing a
thorough
job of research means you have “left no stone
unturned.”
The devastating financial impact to your business resulting
from an outcome similar to the “fictional” scenario just
illustrated should send you on a direct path to your insurance
carrier or at the very least to begin investigating coverages
and rates. The NSPS website may be a great place to start. If
you already carry general liability, vehicle and equipment
insurance, it might also be worthwhile to check with your
present carrier (assuming you haven’t already done so) to
obtain more specific information. Just as title insurance is a
hedge against the likelihood that any claims against your
property may arise resulting in the loss of title to it, carrying
E & O insurance is a far better “hedge” than playing roulette
without it!
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