We recently received an inquiry from an insured firm wanting to know if the following statement on the firm’s website might increase its exposure to claims: “Our philosophy is to provide technically superior services to our clients.” While it’s impossible to predict what type of claim a client may bring – or how that claim may be interpreted in the local jurisdiction – it’s important to recognize the potential adverse effect of “puffery” in advertising. A client may claim that it hired the firm for its “superior” abilities and therefore, since the firm is claiming that it is better than the firm’s peers, the ordinary standard of care doesn’t apply. This increases risk and exposes the firm to claims that may not be covered by its professional liability insurance policy. Professional liability insurance policies provide coverage for damages resulting from negligent acts, errors, or omissions. Negligence is based upon an ordinary standard of care.
Clients may also allege misrepresentation. We are aware of claims in which a developer alleged that an architect misrepresented how many hotels he had actually designed. In another instance, a school district alleged misrepresentation by an engineer regarding his ability to design HVAC systems. It’s not unusual for plaintiffs to include allegations of misrepresentation when a project fails to obtain the desired LEED rating, especially if a website boasts things like “We are a leader in green design.”