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PLSO Issue 5 2015 September October

THE CASE FOR CARRYING E & O INSURANCE 15 Professional Land Surveyors of Oregon | www.plso.org incurred to correct the “mistake”). Maybe this outcome wasn’t so bad after all. This wouldn’t be the first time all your efforts at research go uncompensated, nor will it be the last! You actually breathe a big sigh of relief, thinking that this California lady would likely be the source of numerous headaches and unwarranted demands, not to mention further tension arising between the neighbors that would undoubtedly rub off as additional irritants. 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 wellwritten 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 wellwritten 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 “nonpermanent” 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 longabsent 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! ◉


PLSO Issue 5 2015 September October
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