For professional firms, the goal is always to avoid having a claim, and many firms are fortunate and are able to provide professional services for years without a claim. But there is risk in everything we do, and for businesses the possibility of facing a claim at some point is a reality. If you should have a claim brought against you resulting from the professional services you have provided, how you respond can have a major effect on the ultimate resolution of that claim.
Don’t Ignore a Claim. There are some that may feel, “If I ignore those emails and phone calls, they will just leave me alone.” You may be laughing, but I know of several instances where the design professional actually believed that. If someone contacts you alleging that your professional services caused them harm, you should immediately contact your broker, insurance provider, and other legal and business advisors. Some feel that it is not a claim because they were not served with legal papers. That is not true. Once an allegation has been made that you were professionally negligent, a claim has been made. Get out and stay in front of that claim.
Don’t Go Silent. Similar to ignoring a claim, lack of communication with your claims specialist, your defense counsel, and others that are there to help can also contribute to an unfavorable outcome. Work with, listen to, and communicate with your team. They are there to help, but you must help them help you by communicating.
Do Not Admit Liability and Do Not Attempt to Place Blame. As professionals we want to keep our clients happy. And when a client claims that the harm they have suffered is due to our professional negligence and then supply a host of documentation, we may feel “Well, they make a valid case.” The goal of our legal system is to help determine where liability truly rests. If the liability rests with you, that will be determined during the process, but accepting that liability when in fact it may rest elsewhere can cause you harm. Similarity, we may be quick to say “Not my fault…Joe Jones Consulting is responsible.” Again, if Joe Jones Consulting is responsible, that will be determined during the process, it is not your role to make that determination.
Be Wary of Traditional and Social Media. We live in an age where information is omnipresent. With devices such as laptops, tablets, smart phones, and outlets such as Facebook, YouTube, Twitter, etc., you can get information almost anywhere 24/7/365..366 in a leap year. And because information is so instantaneous, everyone is an expert…or believe they are. All projects have the possibility of gaining public and media interest, but high-profile public projects that are over budget and delayed and projects that fail causing injury or death are at the top of the list. Be careful of talking to the media, and realize that what you or others in the firm say may appear in a media outlet. Having a member of your firm post on their Facebook page “OMG…the roof that collapsed on that school…I worked on that project. The deadline was tight and we did not do our normal QA/QC. I wonder if my details were a factor?” will likely make your defense counsel’s job very difficult.
For more information on what to expect from the claims process, insureds with the Schinnerer and CNA professional liability program should read Understanding the Claims Process, Selection of Defense Counsel, and join our webinar “What to Expect and What Should You Do If You Have a Claim?” on February 12th.