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Extent of Responsibility - Exposure Beyond Employment
By Michael J. Baker, Esq.


Questions always seem to arise regarding stamped and sealed documents. In particular, engineers want to know what is the extent of their responsibility once they stamp the drawings and either move on to another company or organization, or someone else comes along and modifies the drawings without their knowledge or consent.

We should start by discussing what is a "sealed" or "stamped" set of plans or specifications. Generally speaking, to seal or stamp is typically an embossing device or wet ink stamp used by an engineer on drawings and specifications as evidence of registration in the state where the work is to be performed. Technically speaking, registration is the act of being granted the privilege to practice design or engineering in the state where registered. A license is an official document indicating that the engineer is registered.

To practice engineering and "stamp" drawings, the engineer is required to be registered. Engineers must adhere to the statutory requirements and administrative regulations in each jurisdiction in which they intend to practice. Each jurisdiction sets its own standards and has an engineering registration board to carry them out. Evidence of the registration is shown by placing a "seal" on contract documents.

What does it mean when you stamp drawings and specifications with your engineer seal? The meaning varies among jurisdictions, but normally, use of the seal indicates the engineer's responsibility for the contents, the technical documents and that they have been prepared under his or her direct supervision. Note, an engineer must exercise direct supervision of and responsibility for the preparation of technical documents to avoid the act of "plan stamping" (stamping someone else's technical documents), which is a violation of jurisdictional laws and rules of conduct.

An issue or concern is typically raised by the professional regarding what their personal exposure is once they stamp the plans, particularly if they are no longer employed by an entity. Generally, legal personal responsibility is dealt with in several different ways.

One of the ways in which legal responsibility is addressed is through indemnity statutes and particular jurisdiction. Oftentimes, many jurisdictions include statutes that require employers to reimburse and pay for the defense and costs of employees for alleged wrongful or negligent acts committed in the course and scope of their employment. If you, as a design or engineering professional are concerned with your personal exposure when stamping plans on behalf of your employer, you should inquire of your state board or local organization as to the extent of what indemnity obligations are under state labor codes or employment practices.

Engineering professionals are further protected under the typical liability insurance policy carried by your firm for errors and omissions coverage. Typically, these policies are written for the benefit of both your design firm as well as the benefit of the individual licensed professionals who are performing professional activities on behalf of and in the course and the scope of employment of the employer. In many cases, where both the entity is sued for professional negligence and the individual is sued as well, a joint defense or individual defense is owed under certain policy provisions of the professional liability insurance. Of course, a review of the policy is necessary to determine the scope and extent of any such insurance and its applicable coverage. Your concern with the personal liability or exposure or project and you know you will no longer be employed with the company or entity, you may want to inquire regarding the professional liability insurance available and obtain a copy of the policy.

It is also highly recommended that you consult the personnel department or human resources department of your present employer to determine what the internal rules are with your organization as to indemnity for any alleged professional negligence. Many design and engineering firms have specific policies as to what your legal rights and obligations are regarding any defense or accusations regarding plans and specifications stamped by you even though you are no longer with that company or employer. Also, if you were responsible for professional and stamped drawings, before you depart from your organization, you may want to negotiate as part of any employment dissolution agreement issues regarding outstanding projects, professional liability insurance and indemnity rights and obligations to assure yourself peace of mind.

Overall, many jurisdictions have laws requiring employers to defend acts of employees for any negligence committed during the course and scope of their employment. In addition, thereto, the responsible design firm that has professional liability insurance typically provides coverage for the acts of the employees of the firm when rendering their professional services. Nonetheless, if you are concerned about technical documents that you "stamped" after you depart from your employer, you should inquire and consult the appropriate professional as to your exposure and liability, if any.

About the Author

Michael J. Baker is a partner of the construction/infrastructure practice group at the Irvine, California office for the national law firm of Arter & Hadden, LLP. Mr. Baker is a recognized expert, specializing in the representation of local, national and international owners, design professionals and contractors in business and contractual matters, as well as disputes before mediators, arbitration panels and state and federal courts. This representation has included contract negotiations, bid document preparation, contract performance disputes, surety bond claims, and the full range of insurance issues and claims involving major public and private construction projects, engineering systems and specialized facilities. Mr. Baker can be reached at Arter & Hadden, LLP 949.252.3154 or via e-mail: mbaker@arterhadden.com.

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