During times of emergency, like the recent flooding in South Carolina, design professionals typically have been willing to volunteer their services to assist in protecting public health and safety and to provide immediate services to aid in recovery efforts. Such volunteer efforts, or any immediate response efforts involving a limited scope of services during the aftermath of an emergency, are a source of potential liability.
Offering free or paid services in response to a declared emergency is not an insurance coverage issue. Schinnerer’s professional liability insurance covers an insured firm in a volunteer capacity in the same way that it covers the firm in providing services for a fee. The scope of coverage extends to those services provided in an emergency even if the services are provided on a completely voluntary basis and are not provided under a written contract.
State volunteer protection acts can minimize exposure in some cases, but the acts need to be examined closely to determine if they actually afford the immunity of the state not only to licensed design professionals providing services during an emergency, but also to their firms. The immunity should cover both the individual professional providing the services and the firm that authorizes the professional’s expertise during the emergency.
Absent any immunity provided by the state, a licensed design professional would be responsible for meeting a standard of care of similar professionals operating under similar circumstances. The design professional’s risk, of course, can be reduced by qualifying any stated determination in a way that clearly identifies that the determination was made from information available at a specific time and represented a professional opinion. No reasonable architect, engineer, or other design professional would provide an “absolute” statement of structural integrity, conformance to codes and standards, or physical or environmental safety.
In addition, the standard of care expected of a design professional would be less in such an emergency than it would be normally. Even if there is no specific immunity statute for design professionals providing emergency relief services, the general rule is that a design professional performing voluntary or emergency services must do so in accordance with the same care and diligence as other design professionals providing similar services under the same conditions. This standard provides a framework for limiting risk.
It would seem to be appropriate that states provide the immunity of the state to design professionals responding at the request of a government official to provide professional services in an emergency. It is also practicable for a state agency, or even private parties, to defend and indemnify design professionals for any claims, costs, losses, or damages incurred by them for all but their gross negligence if the immunity of a volunteer protection statute is unavailable. Such protections, however, probably would never extend to situations where a design professional is providing assessment services or “emergency fix” design services to a private client at the client’s request.
Schinnerer’s Management Advisory, “Providing Services in Emergency Situations,” provides more information and contractual provisions that the Schinnerer professional liability program has recommended for use when providing services to private clients for a fee or when acting as a volunteer during the aftermath of an emergency. Such provisions limit the risk of the design professional; they should be considered as additions to the written contract used by the design professional or, at a minimum, as an agreement attached to a letter outlining the limited scope of services provided by the design professional. If at all possible, in addition to the risk allocation provision, some form of agreement with the client should clearly spell out the scope of services and the limits of the design professional’s ability based on the conditions encountered.
While design professionals are cautioned to seek specific recommendations from their local legal counsel as to their risk and appropriate contract language to minimize that risk, the Management Advisory offers some general provisions that address the basic concerns of design professionals providing services in emergencies.