"The marshal’s here." Not a phrase from a vintage western, but a uniquely western phrase heard occasionally in the reception area of an American engineer’s office when a process server comes to serve a lawsuit.Whether it is a general or professional liability claim, many legal claims aimed at structural engineers are frivolous.

One example of a frivolous general liability claim is a "slip and fall" claim against a civil engineer from an employee of a test boring drilling company. These third-party claims against civil engineers are often withdrawn or settled with no payments, but they can unnecessarily tie up assets and personnel for extended periods of time and cause unnecessary personal anguish. These types of claims result because some state statutes—such as Connecticut Worker’s Compensation statutes—make it impossible for the injured worker to pursue a claim against his employer if worker’s compensation is involved. All too often, the response of the injured worker is to sue anyone else connected with the project (including the structural engineer), whether or not they remotely played a role in the accident.

A frivolous professional liability claim is exemplified by the case of a structural engineer hired to complete a structural survey of an existing building. The contract was clearly limited to structural elements. However, when lead paint was discovered later by a third party, the engineer was sued. Despite the fact the lawsuit claiming $300,000 in damages ultimately was withdrawn (with no payment), the engineer had to live under the cloud of a pending lawsuit for almost a year.

Any pending lawsuit, whether frivolous or not, can have significant ramifications on an engineer, impacting insurance rates (or even the ability to obtain insurance) or the ability to get new work (some prospective clients are reluctant to enter into contracts with engineers if lawsuits are pending against the engineer on other projects).

Certificate of Merit Rules governing general and professional liability claims are established at the state level. Therefore, engineers must work hard in every state to pass legislation that discourages frivolous lawsuits against engineers. One such example of successful tort reform is the Certificate of Merit statute for engineers. These statutes, or a variation thereof, have been passed in about a dozen states so far.

Legislation is being considered in a number of other states. Many states have a similar law for physicians and other medical professionals.

Such statutes, aimed at reducing costly, misguided, or groundless suits against engineers for alleged malpractice, place the onus of responsibility for screening out groundless claims on the plaintiff.

When a lawsuit is filed, the plaintiff would be required to file with the court a certificate from a third-party design professional declaring that, based upon their review of the allegations, the thirdparty design professional believes that there is a sufficient basis for a claim that the design professional in question has actually breached the applicable standard of care. In many states, all cases involving negligence claims against a design professional require the testimony of expert witnesses for the plaintiff to prove its case.

All too often, it is late in the case when the plaintiff first seeks expert opinion and realizes that the claims that it filed, while potentially meritorious from a layperson’s view, are baseless when viewed by a professional.Therefore, obtaining such an expert technical opinion at the commencement of the lawsuit is not a detriment to the plaintiff, and it may serve to preclude a number of frivolous or misguided claims from being filed.

To pass a Certificate of Merit statute in your state, an organization—such as the local member groups of the American Council of Engineering Companies (ACEC)—needs to take the lead. At ACEC Connecticut, we established a Government Affairs Committee to spearhead such initiatives and to submit legislation.

A good approach is to retain a lobbyist to represent your group and to help guide you through the legislative process.

The next step is to identify potentially interested strategic partners—such as other design professionals—as well as the opposition. Once legislation has been submitted, be prepared to testify at hearings, plan follow-up meetings with key lawmakers, and organize letter writing campaigns from constituent engineers to their representatives.

Concluding remarks

What can you do? Get involved in your profession and fight back. Join and support your professional business organizations that represent and promote structural engineering firms and focus on their interests. ACEC is the leading national organization for our engineering businesses. ACEC is actively promoting tort reform in Congress, and state member organizations are filing legislation to reduce undue liability to engineers.

If individual engineers and firms don’t show up for tort reform, we will continue to be affected with groundless litigation. Active membership in state and national organizations, such as ACEC, is critical for such tort reform.

This means you!

Theodore von Rosenvinge, P.E., is the president of GeoDesign, Inc., a geotechnical engineering firm headquartered in Middlebury, Conn. He can be reached at ted.von@geodesign.net. Donald W. Doeg, Esquire, is a principal at Updike, Kelly and Spellacy, P.C., Counselors at Law, located in Hartford, Conn. He can be reached at ddoeg@uks.com.