By Roger Guilian, JD, CRIS
When I was asked to contribute to the April 2024 issue of STRUCTURE Magazine, I thought, “Well, there is any number of directions one could go with this.” Honestly, I struggled with an appreciable amount of writer’s block as I worked to determine what angle to take for this editorial.
As I sat down to write on this, I considered a piece about risk management best practices for the young structural engineer whose inbox starts filling up with emails about low cylinder breaks or 28-day breaks not meeting specifications.
Perhaps an article about the importance of documenting the project file when the general contractor engages a second or third batch plant in an attempt to stay on schedule and, unlike the initial mixes that arrived on-site that were subjected to inspections, concrete coming from the new mix suppliers isn’t of sufficient quality.
Or how about the handling and testing of cylinders and the disconnect that sometimes exists between the designer and the testing firm? Is it always the concrete’s fault or was the testing not what it should have been? There may have been low cylinder breaks, but were the cylinders left outside in 28° temperatures? What is the effect, if any, on samples that are set outside the fence on a Friday afternoon in August, in Mississippi, in direct sunlight, and not picked up until Monday to be tested?
Maybe a list of top ten risk exposures confronted by structural engineers? Ever since David Letterman, people have loved top ten lists. I could even count them down from third-party car wrecks to unacceptable floor vibrations to severe conflicts with other design elements like MEP, structural, or façade that can lead to significant change orders. Maybe get a bald, quirky, bespectacled keyboardist to help me out. We’ll call him Paul.
Now, to be sure, I am not an engineer, much less a structural engineer. In fact, there is a trail of withered math teachers in my wake who would go straight to the authorities were they to learn that I was even tangentially associated with the engineering industry (see, Mrs. Anderson, you were right: I did end up using “tangent” after high school!). Despite my credentials as J.D. and not P.E., and despite the fact that the only “cosine” I know is when someone else agrees to be responsible for a loan (okay, different spelling), I have walked across cantilevered concrete forms the length of a new bridge project to observe a pre-pour rodbusting inspection, have boated under aged structures to learn how inspectors search for spalling and other structural defects, and had to learn about pre-cast I-beams, shear force, bearing pad friction, and moment demands in one of the most heart-wrenching cases I ever had.
No, I am not an engineer, but I have been around the industry long enough and have seen enough claims and disputes related to any number of engineering disciplines to recognize that parties to a construction lawsuit—especially engineers—tend to believe that the bright lines between their respective scopes and responsibilities will remain stark and in-place throughout the litigation and that everyone will honor and agree to what their respective roles were. More times than not, this turns out to be a terribly costly tendency. Resisting this tendency and moving beyond principle is often the better course of valor.
In the fatalistic words of the scar-faced Sgt. Bob Barnes in Oliver Stone’s masterpiece “Platoon,” brilliantly portrayed by Tom Berenger, “There’s the way it oughta be, and there’s the way it is.”
In construction disputes, the way it ought to be is that parties should only be held accountable for items and responsibilities that fall squarely within their scope of work. The way it is, however, is that lines will be blurred when lawsuits roll in. Unlike engineers, lawyers excel at blurring lines. When the lawsuits fly, everyone on the project will be accused of being responsible for something that doesn’t fall squarely within their scope of work, and the blame-shifting olympics will commence.
Of all the parties to construction litigation, it has been my observation that engineers tend to place more faith than others in the steadfastness of the lines separating their professional responsibilities and scopes of service from the various project participants. This comes not from hubris but from what I believe is the engineer’s inherent sense of fairness; of right-and-wrong; of the plainly calculable and demonstrable; and from the engineer’s often misplaced faith that others associated with the dispute—the lawyers, the court, the other parties—will apply the same sense of fairness and recognition of the patently obvious.
So, when the slow march of problems is observed on a project, what is an engineer to do? One of the most critical things to do is to avoid the tendency to think, “This is a construction problem; it has nothing to do with the design.” Lines aren’t that bright in construction or in litigation. At the end of the day, someone’s lawyer is going to try to make everyone at least partially responsible for some aspect of what went wrong. Engineers should insert themselves into the issue, get engaged, and do everything they can to keep the train on the tracks.
And, of course, engineers should engage their risk management partners—insurance brokers and carriers, attorneys, and executives—sooner rather than later in order to evaluate the problem and devise the most productive solution.
One concrete thing about construction is that there will be problems. Whether those problems turn into lawsuits often depends on how project partners address them. ■
About the Author
Roger Guilian, JD, CRIS, is a Senior Vice President with Greyling Insurance Brokerage. He is heavily involved with the American Council of Engineering Companies (ACEC) on the state and national level and is Co-Program Manager of the ACEC Business Insurance Trust.