“The difference between a moral man and a man of honor is that the latter regrets a discreditable act, even when it has worked and he has not been caught”.
- H.L. Mencken
As a Forensic Engineer, I have experienced speaking in an otherwise silent courtroom. It was humbling and awesome when I explained an event as an authority on that subject. I also answered questions from a cross-examining lawyer about a litigious matter, with a potential settlement in the millions of dollars, in front of a judge, jury and court reporters. As the expert witness I was duty bound to listen to the question and respond with my expert opinion.
- The – singular, authoritative, one and only, or unique.
- Forensic Engineer - applies the art and science of engineering in matters which are in, or may possibly relate to, the jurisprudence system, inclusive of alternative dispute resolution.
- Caught - to snare, to entangle, to seize, and to take captive in a snare or net, or on a hook; as to catch a bird or fish.
- Holding Harmless – assumption of liability through contractual agreement by one party, thereby eliminating liability on the part of another party.
Forensic Engineering requires a good reputation, proven technical prowess, and precise communication skills. The novice Forensic Engineer quickly learns that to financially survive, business management savvy is required and not solely engineering talent. The success or failure of any business is impacted by cash flow, taxes, and liability insurance. Forensic Engineering is a risky business venture.
Most Forensic Engineer’s are seasoned, somewhat financially stable and pursue their vocation with a passion. Forensic Engineer’s are generally experienced individuals who are settled, established and have a long professional history working in industry. Forensic Engineer’s have General Liability Insurance and Errors & Omissions (E & O) Insurance for their business. Forensic Engineer’s are a target for the legal community and the subject of frequent ethics debates among Professional Engineers.
Over the years I have observed that in my conversations with professionals (lawyers, accountants, physicians, educators, etc.) I can detect when they have attended a professional seminar, read a new book or taken a short course about a trendy topic. It seems that all of a sudden, the person has a new perspective or a different attitude about a business subject. The Forensic Engineer gains “hands-on” business skills, as the owner, sole proprietor or partner, and should also learn and use timely business strategies to make good decisions about liability, taxes and insurance. To keep up with the ever-changing world of business, the Forensic Engineer should regularly attend professional seminars, read contemporary books and associate with fellow Forensic Engineers.
Legal disputes arise because of disagreements between opposing parties, often about money. Forensic Engineer’s are hired to participate in these disputes because engineering expertise is needed to identify and sort engineering facts about technical issues for a personal injury, noncompliance with a contract, or compliance with an accepted code, standard or specification. The Forensic Engineer is hired to provide expert examinations and interpretations of the facts in a case and render an expert opinion. Applicable terms and definitions are:
- Engineering - an important and learned profession.
- Engineering Ethics - a search for ethical engineering solutions.
- National Academy of Forensic Engineer’s (NAFE) is a professional organization formed to advance the art and skill of Engineers who serve as Engineering consultants to members of the legal profession and as expert witnesses in courts of law, arbitration proceedings and administrative adjudication proceedings.
As a profession, engineering constantly involves the exercise of expert judgment and discretion in the performance of duties. Engineers are expected to use their background, education, experience and knowledge in a manner that unequivocally contributes to public health and safety.
To determine appropriate actions in situations, the Engineer must occasionally look for legal guidance in statutes, regulations and court decisions to provide a basis to make certain decisions concerning conduct and behavior. However, the law does not address many issues concerning appropriate professional conduct for the Engineer.
A resource for ethics guidance might be colleagues, family or friends. While sometimes these sources might be extremely valuable as a sounding board, in some cases these individuals might lack the necessary education and training to provide useful feed-back or their inputs might be biased or prejudiced by other facts or circumstances.
Members of the NAFE (Academy) are proponents of the Code of Ethics developed by the National Society of Professional Engineers (NSPE). This Code of Ethics for Engineers assists Forensic Engineers in making decisions during their every day practice and employment. A professional code of ethics reflects basic “norms” of conduct that exist within a particular profession and provides general guidance related to a variety of issues.
The NAFE was formed to identify and bring together Professional Engineers having qualifications and expertise as Forensic Engineers to further their continuing education and promote high standards of professional ethics and excellence of practice.
As members of the Academy, Forensic Engineers are expected to exhibit the highest standards of honesty and integrity. The expert services provided by Forensic Engineers require honesty, impartiality, fairness and equity, and must be dedicated to the protection of the public health, safety, and welfare. Forensic Engineers must perform under an exemplary standard of professional behavior that requires adherence to the highest principles of ethical conduct.
The personal choice to become a Forensic Engineer, an authoritative engineering expertise in a chosen field, was a decision that each of us made when we applied to the Academy for membership and continue to remain members of the Academy. Members of the Academy are leaders in the ethical practice of Forensic Engineering by fostering competent, independent and unbiased application of engineering principles within the jurisprudence system.
Forensic Engineers, in the fulfillment of their professional duties, should abide by the Fundamental Canons of the NSPE Code of Ethics for Engineers as listed:
- Hold paramount the safety, health, and welfare of the public.
- Perform services only in areas of their competence.
- Issue public statements only in an objective and truthful manner.
- Act for each employer or client as faithful agents or trustees. The Engineer shall not give, offer or promise to pay or deliver, directly, or indirectly, any commission, gift, favor, gratuity, benefit, or reward as an inducement to secure any specific engineering work or assignment.
- Avoid deceptive acts. The engineer shall not offer any gift or other valuable consideration in order to secure work.
- Conduct themselves honorably, responsibly, ethically, and lawfully so as to enhance the honor, reputation, and usefulness of the profession.
- Accept personal responsibility for their professional activities, provided that engineers may seek indemnification for services arising out of their practice for other than gross negligence, where the engineer’s interests cannot otherwise be protected.
The Professional Engineer can spend an entire career in the corporate environment with immunity and protection from personal liability for engineering decisions. There are numerous corporate exemptions for protecting the Professional Engineer’s personal accountability in corporate projects and decisions.
The corporate Professional Engineer’s role changes with time and upon becoming an independent business entity and a Forensic Engineer. The Forensic Engineer is eligible for personal liability in projects and decisions. As a self-employed Forensic Engineer, the Professional Engineer is now confronted with finding the data, presenting the data, and explaining what the data means in the simplest terms. When engaged in forensic assignments, it is a provocative situation to be totally objective, unbiased and supply credible evaluations to those who have never been involved in a Professional Engineer’s decision making processes. The Forensic Engineer occasionally appears to compete with self-proclaimed experts, contractors and attorneys disseminating their opinions as factual because they read a few related articles on the internet.
Both spontaneous replies and calculated responses are required from the Forensic Engineer. The majority of Forensic Engineers are cautious to only provide credible reports. For the Forensic Engineer, there are no attempts to deceive or misrepresent findings. Results of examinations and reviews are reported based on protocols applicable at the time of the investigation. The Forensic Engineer’s report is only one of the many factors which contribute to the resolution of a case in court. It is reasonable to note, the Forensic Engineer’s testimony in many cases may have much less significance toward the outcome of the case, than eye witness testimony, or the effectiveness of counsel.
The Forensic Engineer is generally classified as a small business organization. Clients are individuals, lawyers, insurance adjusters, and large corporations. A corporate client will generally include their purchasing department, accounting department and legal department. The Forensic Engineer must learn to interact with these corporate departments in the course of providing Forensic Engineering services. These departments are necessary because the Forensic Engineering firm must be concerned with meeting their needs to maintain cash flow and routine payments for work products.
Forensic Engineers should engage in ethical business practices to preserve their reputations and the well-being of the public. Forensic Engineers should not show more concern for record breaking quarterly earnings than protecting the safety of the public.
As a business, the Forensic Engineering firm is now a target for legal accountability, liability and contract terms on each project. Every new assignment can have different terms and stipulations that should be reviewed with legal counsel and negotiated with the client. It is much simpler when the Forensic Engineer can provide a letter of engagement, scope of work, contract or work agreement that is mutually signed off. The Forensic Engineer’s legal considerations are less complicated.
Sometimes, it is not possible to come to terms with the client on the Forensic Engineer’s work agreement. The Scope of Work must be very straight forward and understandable. The difficulty is that the client’s purchasing department or accounting department doesn’t know how to classify the Forensic Engineer. As a result the Forensic Engineer is considered as an outside contractor or consultant. Therefore the client’s standard contractor agreement or consultant agreement is proposed to the Forensic Engineer for mutual sign-off rather than the Forensic Engineer’s work agreement as an independent Forensic Engineer expert. The Forensic Engineer is neither a contractor nor a consultant. The FE is an unbiased, and objective Forensic Engineering expert.
The Forensic Engineer should not unknowingly sign-off on hold harmless or indemnity provisions in a contract with a client. The Forensic Engineer’s insurer may indirectly incur a liability that was not part of the original terms of the policy. In the event of a claim, the Forensic Engineer may be found to have violated the terms of the Forensic Engineer’s insurance policy and not be covered.
A contract is an agreement signed by two or more parties that is legally enforceable. When two parties sign a contract, it indicates that they have been through the contract and agree on the terms and conditions contained in it.
Risk allocation provisions in contracts should clearly spell out the scope of work and the limits of the liability of the Forensic Engineer based on time constraints and conditions encountered. Contract provisions can limit the risk of the Forensic Engineer and the client. The negotiated consideration exchanged for a waiver of rights or an obligation to defend or pay on behalf of the Forensic Engineer is the client’s voluntary negotiation for the Forensic Engineer’s services. An indemnification provision is considered as an attempted addition the standard contract.
When a Forensic Engineer enters into a contract with a client, there are standard sections in the contract that are agreeable to both two parties, for example, the Scope of Work, the anticipated completion date, and the remuneration terms. When the Forensic Engineer and the client both sign the final version of the contract, it means that all the terms and conditions of the contract are now mutually agreed upon.
The Forensic Engineering firm should consult with their commercial insurance provider for General Liability coverage details and Errors & Omission (E & O) insurance terms. Forensic Engineers are cautioned to always seek recommendations from their legal counsel before signing the contract to minimize financial risk.
It is not just new clients to a Forensic Engineering firm that require a customized work agreement before work begins. An established client may have an annual renewal to the work agreement that also needs review. The terms may have changed. Similarly, the Forensic Engineer’s insurance policies may also change periodically. It is difficult to forecast what the terms and conditions of a policy will be caused by court rulings or the recent economic turmoil.
The Forensic Engineer needs routine income and cash flow to remain financially solvent. There are times when the Forensic Engineer may engage in engineering activities and inspections that are consulting and not litigation or insurance related. It is in these situations that the Forensic Engineer must be cautious and get good advice before signing a work agreement with hold harmless or indemnification provisions.
Another reason that the Forensic Engineer is unable to sign a work agreement with hold harmless provisions is because there cannot be two contracts in effect simultaneously to govern liability for the same Scope of Work. The Forensic Engineer is being asked to forego ethical engineering obligations and indiscriminately agree to a hold harmless provision with tremendous long term risk possibilities.
Forensic Engineers should read and understand their commercial insurance policies. Take time to look over the change notices and renewal for the General Liability Policy and Errors & Omissions Policy. When considering the annual renewal for these policies, pay particular attention to the exclusions. Several exclusions and revisions may be as listed:
- Cancellation and renewal provisions may shorten and procedures may change.
- Nonrenewal, the insurance company may decide not to renew the policy.
- Knowingly violating the rights of another that would inflict “personal and advertising injury.
- Amounts that the insurance company will pay with respect to any claim investigated or settled, or any suit against an insured up to $250 for bail bonds, reasonable expenses incurred by the insured to $250 per day
- Unintentional failure to disclose all hazards.
- Concealment, misrepresentation or fraud, policies will not pay for any loss or damage in any case of concealment or misrepresentation of a material fact, or fraud committed by the insured or any other insured at any time and relating to coverage under the policy.
- Legal action against the insured’s insurance policy – no person has the right under the insurance policy to join the insurance company as a party or bring the insurance company into a suit asking for damages from an insured or to sue the insurance company, unless all the terms are in full compliance.
- Professional liability insurance policy specifically states that “Hold Harmless” provisions are not allowed without first getting permission from the insurance company.
- General conditions prohibit voluntary payments and settlements by the insured. With respect to any claim covered under the policy, the insured shall not, except at the insured’s own cost, make any payment, admit liability, settle claims, assume any obligation, agree to arbitration or any other means of resolution of any dispute, waive any rights to incur claim expenses without prior written approval by the insurance company.
- Fraud Statements – vary by each state. In general, it is unlawful to knowingly provide false, incomplete or misleading facts or information to an insurance company for the purpose of defrauding or attempting to defraud the insurance company. Penalties may include imprisonment, fines, denial of insurance and civil damages. Any insurer or insurance agent who knowingly provides false information is also subject to legal penalties.
The hold harmless provision in a contract puts the client at a great advantage. The client doesn’t need to worry about the losses and can proceed with their duties and not worry about their liability.
In Forensic Engineering terms, hold harmless provisions are described as a “red light topic”. Consider the analogy that when a driver runs a red light and collides with another vehicle in the intersection. The driver who “ran the red light” is always at fault. Hold harmless provisions try to make the Forensic Engineer liable for any occurrence, always, regardless of who was driving.
Hold harmless provisions in a contract are subject to local, public jurisdictions (state, county and city). In general, there are concerns about the legality of hold harmless provisions in contractual agreements between Professional Engineers and public entities. These hold harmless provisions shift the risk of a project away from the owner.
Contracts with corporations can contain stringent hold harmless, indemnity, and waiver of subrogation provisions. The hold harmless provision is a very important part of a contract. Before entering into any contract, read and understand the hold harmless and indemnification sections, exhibits or addendums. Legal definitions of hold harmless and loss are:
- Hold harmless - to absolve (another party) from any responsibility for damage or other liability arising from the transaction; understood to protect another against the risk of loss as well as actual loss.
- Loss - the disappearance or diminution of value, usually in an unexpected or relatively unpredictable way,” and it defines liability as “a financial or pecuniary obligation.
These hold harmless provisions are boiler plate to the corporate legal department in a standardized format for contractors, sub-contractors and consultants to sign and follow. Waivers changing these standardized contracts are unlikely.
The hold harmless and indemnification clauses are in the contract as one of the terms and conditions, exhibits, or addendums. The client may demand that the FE sign the entire contract with the hold harmless provisions. By signing the hold harmless agreement, the FE agrees that any losses or any calamity during the assignment will not be the responsibility of the client and the loss of money and materials in any such situation will be borne by the FE. Often, it may so happen that there are some onsite mishaps during any engagement. The client or any other person may choose to wash their hands of the ensuing liability of loss, by making the FE, who signed the hold harmless agreement, liable for the entire loss. By signing the hold harmless agreement, the FE basically chooses to undertake all the losses that may arise during the assignment.
These hold harmless provisions in contracts are described as justifiable by the corporate legal department as “boiler plate” without discrimination for all their contractors, consultants and outside engineers. The following items are a brief list of possible corporate legal justifications for holding harmless clauses in their contracts:
- Prevent the spread of terrorism.
- Prevent frivolous lawsuits.
- Prevent tax fraud.
- Adhere to OSHA, MSHA or CFR requirements.
- Insure timely payment of taxes and avoid tax liabilities.
- Compliance with the war on drugs.
- Environment, health and safety insurance claims.
Contracts state that the Forensic Engineer consultant will obtain and continue in force, at its own expense, insurance coverage as set forth in Exhibits, specifically naming the client as an additional insured. The insurance coverage shall survive the termination or expiration of the contract. In the event that Forensic Engineer (consultant) does not have insurance the client has the right to obtain such required insurance and withhold such premiums as necessary from payments to Forensic Engineer (consultant).
Standard hold harmless and indemnification provisions have gone so far as to contain verbiage that the consultant (contractor) would pay all costs for another expert opinion in the event that any results that the original expert (Forensic Engineer) provided were determined to be unacceptable by the client’s management.
Indemnification clauses require one party to pay legal and other expenses of another party.
Nowadays, there are attempts to insert indemnification agreements into contracts. These indemnification provisions are also written by the corporate legal department in a standardized format for contractors and consultants to sign and pledge compliance.
- Indemnify - termed “save harmless”. To reimburse (another) for a loss suffered because of a third party’s or one’s own act or default, “hold harmless”; to promise to reimburse (another) for such a loss; to give (another) security against such a loss; sometimes used as a synonym of hold harmless, but that indemnify can also mean “reimburse for any damage,” a narrower meaning than that of hold harmless.”
- Indemnification - an agreement or contract in which one party agrees to hold the other free from the responsibility for any liability or damage that might arise out of the transaction involved.
- Promise to Indemnify - words of promise, indemnification clauses use the terms, “indemnify”, “hold harmless,” and promise to defend’ interchangeably.
While the terms “hold harmless’ and “indemnify” are essentially equivalent, a duty to defend is separate from a duty to indemnify. Accordingly, even in those circumstances where a party is not held responsible for indemnification of the underlying liability, the contract may impose a separate and independent duty to defend the underlying claim.
An indemnity clause requires that one party indemnify the other, in the event that certain expenses are incurred. Therefore, the FE agrees to indemnify and hold harmless the client against loss or threatened loss or expense by reason of the liability or potential liability of the client for or arising out of any claims for damages. Be careful agreeing with this type of clause, as it can significantly increase the FEs exposure in the extent of an unexpected event or breach of the contract.
For example, a client might agree in a Forensic Engineer's contract to pay the judgment if the client is successfully sued for injuries sustained by a plaintiff if the Forensic Engineer is acting within the scope of their authority on the client’s time. In certain cases, particular parties may not, however, be exempted from liability. For example, a provision exempting a common carrier from all liability for loss would ordinarily be void, as against public policy. Hold harmless agreements are ordinarily contained in leases and easements.
In performing Pro Bono activities, Forensic Engineers need to understand their risks and communicate with clients when contributing services without a fee. A client must acknowledge that in addition to providing services the Forensic Engineer is risking its reputation and financial viability because of its exposure to meritless claims from the client or from third parties.
No services by a Forensic Engineer should be provided without a signed work agreement. It most cases, that work agreement should acknowledge the client understands that it is waiving possible future claims against the firm. It is also both logical and fair to have the agreement contain language protecting the pro bono firm from third-party claims
- Indemnity, contractor (consultant) will indemnity and hold harmless the client, its affiliates, subsidiaries and related companies, and their officers, directors, agents, representatives and employees, and each of their respective successors and assigns (the “Indemnified Parties”) against any and all suits, losses, demands, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and other costs of defending any action) (“losses”) which the Indemnified Parties may sustain or incur in connection with a breach of any representation, warranty or undertaking made by contractor in this agreement.
- In connection with the performance, design, development, sale, use or delivery of the goods or services, whether the suit, claim or demand be based upon a theory or breach of contract or warranty, negligence, strict liability, other tort , infringement, or any other legal theory, except to the extent caused by the negligence of the client or other Indemnified Parties.
- As a result of any suit, claim or remain under any environments, transportation, health, safety or other laws, rules, regulations or requirements caused by or resulting from the Services or any acts or omissions of contractor in the performance of this contract, If contractor’s performance requires contractor, its employees, agents or representatives to perform services on the property of the client or its agents, contractor will indemnify and hold harmless the Indemnified Parties against all losses for injury or damage to person or property arising out of such performance, except to the extent causes by the client or its agent. Contractors (consultants) agree that, when requested and given reasonable notice of the pendency of any such suits, claims or demands, assume the defense of the Indemnified Parties against any such suits, claims or demands.
- Contractor (consultant) expressly and specifically waives all immunity that may be afforded to contractor under the worker’s compensation laws of any state or jurisdiction to the extent permitted by law.
- Contractor (consultant) indemnifies client in connection with a breach of any representation, warranty or undertaking made by contractor (consultant) in this agreement
- Contractor (consultant) in connection with the performance, design, development, sale, use or delivery of the goods or services whether the suit, claim or demand is based upon a theory of breach of contact or warranty, negligence, strict liability, other tort, infringement or any other legal theory, except to the extent caused by the negligence of the client or other Indemnified Parties.
- As a result of any suit, claim, or demand under any environmental, transportation, health, safety or other laws, rules, regulations or requirements caused by or resulting from the service or any acts of omissions of contractor (consultant) in the performance of this contract.
- When contractor’s (consultant’s) performance requires contractor (consultant), its employees, agents or representatives to perform services on the property of client or its agents, contractor will indemnify and hold harmless the Indemnified Parties against all losses for injury or damage to person or property arising out of such performance, except to the extent caused by the client or its agent.
- Contact or (consultant) agrees that when requested and given reasonable notice of the pendency of any such suits, claims demands, assume the defense of the Indemnified Parties against any such suits, claims or demands the contractor will step forward immediately.
- Contractor (consultant) expressly and specifically waives all immunity that may be afforded to contractor (consultant) under the workers’ compensation laws of any state or jurisdiction to the extent permitted by law.
Certain indemnification provisions in construction contracts have been declared void in some jurisdictions. Any provision contained in any contract relating to the construction, alteration, repair or maintenance of a building structure or appurtenance thereto, or any provision contained in any contract relating to the construction of projects by which the contractor (consultant) performing such work purports to indemnify or hold harmless another party to the contract against liability for damage arising out of bodily injury to persons or damage to property suffered in the course of performance of the contract, caused by or resulting solely from the negligence of such other party or his agents or employees, is against public policy and is void and unenforceable. The section applies to such contracts between contractors (consultants) and any public body.
It is possible that the Forensic Engineer could be indemnifying the client against both the risk of loss as well as actual loss. One contract contained standard indemnification wording that the Forensic Engineer was to pay for another expert opinion in the event that any results that my firm provided were determined to be unacceptable by Client personnel. Indemnification section of a contract – reimburse corporation for their expenses or losses, additional insured provisions
The Forensic Engineer’s Work Agreement (contract, letter of engagement) should contain the essence of these suitable provisions in the following key points. These provisions must be customized for each client and situation about holding harmless and indemnity.
These examples of contract provisions are statements for terms about losses, damages and disputes. These provisions include right to cure, losses limited to contract price, no individual or personal liability, no consequential damages, and disputes. There are other provisions that are not listed below.
- Right to Cure - The parties agree that Forensic Engineer’s sole liability to Client for any non-conforming Work and client’s sole remedy therefore shall be for Forensic Engineer to correct the item of defective services, written notice of which must be promptly given by client to Forensic Engineer, after client’s discovery of any defect and within three months from the date that Forensic Engineer completes an assignment.
- Losses Limited to Contract Price - The parties agree that Forensic Engineer shall not be liable for damages in an amount that exceeds the original contract price. The maximum damages that FE shall be liable for, under any circumstances, is the contract price. In no event shall Forensic Engineer be liable to the client for any loss, cost, claim, cause of action, action, damage or expense of any kind or nature, including, without limitation monetary losses, damages, fines, penalties, remedial obligations, costs, expenses, attorney fees, etc. (loss), resulting from, incident to, connected with or arising out of the performance of the work, or default of breach of this contract or an associated work order, in a total amount greater than the contract price. Client hereby expressly releases Forensic Engineer from and against such Losses except in an amount equal to or less than the contract price. Client assumes the risk of all losses in excess of the contract price and agrees to not sue or assert a claim, action or cause of action against FE or any person in excess of the contract price.
- No Individual or Personal Liability - The parties agree that Forensic Engineering firm’s directors, officers, employees, agents, representatives, subcontractors and other such persons shall not be personally or individually liable for damages or be sued by client. In no event shall the Forensic Engineering firm’s officers, employees, agents or representatives be personally or individually liable to client for any loss, cost, claim, cause of action, action, damage or expense of any kind or nature, including, without limitation monetary losses, damages, fines, penalties, remedial obligations, costs expenses, attorney fees, etc. (loss) resulting from, incident to, connected with or arising out of the performance of the Work, or default of breach of this contract or an associated work order. Client hereby expressly releases Forensic Engineering firm’s directors, officers, employees, agents, representatives, subcontractors and other such persons from and against such losses and agrees to not sue or assert a claim, action or cause of action against any such person. In the event of a loss, client’s sole relief is against the Forensic Engineer and not Forensic Engineering firm’s directors, officers, employees, agents, representatives, subcontractors and other such persons in a personal or individual capacity.
- No Consequential Damages - The parties agree that in no event shall Forensic Engineering firm or its directors, officers, employees, agents, representatives, subcontractors or other such persons be liable to client or anyone else for any indirect, special, incidental, punitive, exemplary or consequential damages, including, but not limited to, damages or losses for loss of production, loss of revenue, loss of profits, loss of business or business interruptions, loss of use of assets, or loss of product or facilities’ downtime (damages) resulting from, incident to, connected with or arising out of the performance of the work, or default or breach of this contract or an associated work order. Client hereby expressly releases Forensic Engineer and such persons from and against such damages and agrees to not sue or assert a claim, action or cause of action against any such person or equity. Client assumes the risk of all such damages.
- Disputes - Any controversy, claim or dispute arising out of or relating to this contract, shall be resolved through binding arbitration conducted in accordance with the rules of the American Arbitration Association in the Forensic Engineering firm’s home jurisdiction. The laws of that jurisdiction shall be the governing law. The arbitration award will be enforceable in any state or federal court. In any arbitration or court proceeding, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs. In addition, client shall be responsible for payment of attorneys’ fees and expenses associated with the Forensic Engineering firm’s efforts to collect money owed under the terms of this contract.
It will be difficult to prove that the Forensic Engineer was able to hold harmless or indemnify a client and still remain unbiased and objective in performance of engineering duties. It would likely be considered unethical for the Forensic Engineer to accept a broad indemnification provision in contracts for Forensic Engineering services.
Several corporate legal departments have verbally implied a waiver for holding harmless and indemnification clauses for Forensic Engineering, though it has yet to be written into the final contract.
The Forensic Engineer should attempt to tailor the hold harmless and indemnification provisions of a contract to accept reasonable liability and consider current availability of professional liability insurance as appropriate for the project.
With hold harmless provisions in a corporate contract, there is no liability for the corporation. In the simplest terms, the Forensic Engineer assumes all of the liability. The Forensic Engineer should not agree to the hold harmless provisions of a contract when clearly it puts the FE in a position of disadvantage.
The Forensic Engineer should not get caught in contracts written by corporate clients that invalidate the Forensic Engineer’s independent, unbiased, and objective status.
- The Forensic Engineer should not work without a signed contract.
- Clients proposed contracts with hold harmless and indemnification provisions should be rejected.
- The Forensic Engineer cannot agree to hold harmless provisions of a contract and maintain unbiased objectivity in expert findings within the jurisprudence system.
- The Forensic Engineer cannot assume all the liability of an engagement.
- The Forensic Engineer should avoid contingent fee arrangements.
- The Forensic Engineer has obligations stated in the Professional Engineer’s code of ethics.
- The Forensic Engineer should be always cognizant of the profession’s legal duty to the public.
- General Liability and E & O Insurance policies generally prohibit hold harmless contracts without prior approval in writing by the insurance company.
- The Forensic Engineer should not give, offer or promise to pay or deliver, directly, or indirectly, any commission, gift, favor, gratuity, benefit, or reward as an inducement to secure any specific engineering work or assignment.
The Forensic Engineer should consider all the risks of being caught holding harmless.
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