Early Action Plans Avoid Lawsuits

by Gary P. Ten Eyck, P.E.

The author is president of Ten Eyck-Merritt-Barnett-Pitt, Inc., a structural engineering firm in Dallas, Texas.

I’ve long been involved in the Technical Peer Review (TPR) program of the Structural Engineers Risk Management Council (SERMC) and have had the opportunity to conduct TPRs on structural engineering firms nationwide. Over the years, I’ve observed a definite improvement in how structural engineers practice.

I’ve also noticed surprising similarities in how we operate. Whether from California, Texas or Massachusetts, we run our offices, generate designs and produce drawings that look very similar. Codes, of course, change and seismic design is more critical in some locales. But, by and large, we are much the same. I suspect we all wear similar pocket protectors!

Because of these similarities, we find through peer reviews that structural engineers face similar problems and can often apply similar solutions. The original SERMC TPR program focused on the technical competence of firms. The current second level program, TPR2, focuses on the firms’ policies and procedures for quality control and minimization of liability risks. SERMC has categorized these policies and procedures into six areas called “Prescriptions for Success,” which I suspect would apply to other types of design firms equally well.

These Prescriptions are:

Rx 1 - Evaluation of Risk (assessing potential clients and your firm’s capabilities)
Rx 2 - Proper Scope of Services
Rx 3 - Quality Contracts
Rx 4 - Contract Document Quality Assurance
Rx 5 - Construction Phase Services
Rx 6 - Early Action Plan (what to do when problems develop).

Based on the TPRs I’ve conducted, firms are doing well at following prescriptions one through five. The one area where I consistently see a weakness is in observing prescription six -- developing early action plans to head off troubles before they turn into disasters.

Signs of Trouble

The troubles addressed by this prescription often become apparent during construction but can, in some instances, occur long after construction is complete. I won’t discuss the complexities of litigation or how firms defend claims, but rather how structural engineers react or don’t react to potential problems that could develop into claims and lawsuits.

Inexperienced engineers are usually not taught to recognize or resolve these problems. Here are some indicators that should alert the design firm to trouble:

• Contractor and/or owner makes allegations or threats that corrections or other field work may be the responsibility of the design team
• Drawings are less than complete or seem to have more than usual errors resulting in change orders, delays, etc.
• Client withholds normal payments
• Meetings are called by client, owner or contractor to discuss unsatisfactory work on the part of the design team
• Contractor or client have unusually high personnel turnover
• Contractor is behind schedule and blames design team
• Client or contractor’s representative has a sudden negative change in attitude
• Lack or sudden avoidance of communication (internal or external)
• Accidents at the site
• Financial shortages (subcontractors not being paid, etc.)

Internal design firm problems -- continual overworking of staff, high staff illness or absenteeism, poor morale/attitude, high pressure atmosphere, production falling behind schedule, etc.

One reason inexperienced engineers may not recognize or rectify these problems early on is that, fortunately, these situations don’t occur very frequently. Thus, young design professionals often don’t acquire real-life resolution skills. During my TPRs, I try to spend a proportionate amount of time “grilling” project engineers on these potential problems. The comment I frequently hear is, “We don’t discuss this issue at staff meetings.”

A Game of “What If?”

Some peer reviewers, including me, utilize an early action planning technique called “what if?” During one review, my conversation with an engineer went like this:

Q: “When reviewing reinforcing steel at a jobsite, what would you do if a beam and column came loose and an ironworker was seriously injured or killed?”
A: “I’d make certain that medical help had been summoned.”
Q: “Good. What then?”
A: “I’d call my boss.”
Q: “Your boss and the management staff is out of town and unavailable. What then?”
A: “I’d return to my office and include this in my report.”
Q: “What if, when you arrived at the office, the Channel 8 minicam was in front of the office and a reporter was in your lobby, cameraman poised asking for a statement?”
A: (Pause) ... “I’d quit.”

This “what-if” scenario is rather far-fetched and unlikely to happen -- but it has happened. More often than not, true-life problems encountered would not be so disastrous. My point is that engineers are not taught how to deal with serious problems nor to even recognize their symptoms.

One of the recommendations I make to CEOs during our review conference is to hold brown bag workshops dealing with early action issues. “What-if” scenarios can be used as role-playing exercises to stimulate discussion. Most of the project engineers that I interview are eager to learn this aspect of engineering and could gain considerable maturity in their professional development. It would be time well spent, since the lessons learned could pay dividends to their firms and to themselves in heading off trouble and preventing serious problems that could ultimately lead to costly litigation.