|
|
|
|
 |
WSPE eNews
A monthly publication from the Wisconsin Society of Professional
Engineers
October 1, 2006 Edition
1. |
WSPE's President Corner |
| One of WSPE's core purposes is to promote
the licensed practice of engineering. A license is legally
required for engineering practice where the health and safety
of the public is involved, and is also important and advantageous
to all engineers. A license is a sort of proof that a person
is a true professional in their line of work. It indicates
that a person has a certain level of competence, and is dedicated
to practicing competently and ethically.
Two of WSPE's four main goals this year deal with licensure.
One of the goals is continuing education. A WSPE task force
is dealing with educational requirement changes that will
effect our engineers in our state and the nation. There are
the increased college credit requirements being proposed in
the NCESS model law for initially obtaining a license. And
in Wisconsin where there has not been any additional requirements
after obtaining a license, continuing education requirements
are now in the works and will effect you as a licensed engineer.
As the organization that represents the individual engineer
from all engineering disciplines, WSPE is working to make
sure these new requirements are appropriate and good for engineers
and the profession.
The other component of licensure is the license exams. The
Professional Engineering and Fundamentals of Engineering exams
are administered twice a year at three sites in Wisconsin:
Madison, Milwaukee, and Platteville. The exams fit in with
the second licensure related WSPE goal for this year: engineering
publicity and recognition. Part of our mission is to enhance
the image of engineering and the well being of our members.
Part of accomplishing this will be to become more involved
in the exams in three ways: encouragement to take and help
in taking the exams, support at the exams, and recognition
of those who pass the exams. Our first step is to begin an
exam support presence starting this October 27th and 28th.
We need a few volunteers. Please contact the Nancy at the
state office if you are willing to help (wspe@wspe.org).
Regards,
Robb Peebles
WSPE President
TOP |
2. |
NSPE ethics webinars |
| Although WSPE won't be financially sponsoring
any sessions, ethics is an important part of our core mission
and we encourage members to take advantage of these webinars
for their companies or groups.
More
on the Ethics webinar.
TOP |
3. |
Put the Brakes on Fatalities Day |
| WSPE has asked the governor to proclaim Oct
14th Put the Brakes on Fatalities day. Information on the
web site: www.brakesonfatalities.org
TOP |
4. |
WSPE Job Board |
| Be sure to take a look at the WSPE Job Board!
Have you looked at it lately? Because of your WSPE membership,
your company receives a significant discount for a 30-day
posting. WSPE welcomes job postings from organizations that
have a career opportunity that may be of interest to a professional
in the field of engineering. Tell your friends. Tell your
co-workers about the job board. Contact Nancy Short n.short@wspe.org
for additional information and pricing.
TOP |
5. |
Legal Perspective - An Article by Robert
A. Kay
Current AAA Procedures. |
| In the January/February 1999, August/September
1999, and January/February 2005 issues of the Engineering
Professional publication of WSPE, I discussed the growth of
the economic loss rule in Wisconsin and its application to
design and construction contracts. In the January/February
2005 issue, I discussed the recent Wisconsin Supreme Court
decision in Insurance Company of North America v. Cease Electric,
where the Court held that the economic loss doctrine did not
apply to contracts for construction services. The economic
loss rule precludes a disappointed owner from suing the manufacturer
of a product for negligence where the product simply fails,
disappointing the owner. The rule limits the disappointed
owner to a breach of contract action against the manufacturer
and prohibits the owner from suing the manufacturer in tort
for negligence. Breach of contract damages are generally defined
as the loss of the bargain and do not include damages otherwise
recoverable in tort that naturally flow from negligent conduct.
Past decisions of the Wisconsin Supreme Court suggest that
design professionals can be sued either in contract or tort.
However, the growth of the economic loss rule in Wisconsin
has been steady, and the Court may eventually conclude that
where the owner’s grievance is only that the building
does not work correctly, the owner is confined to pursuing
damages for breach of contract and not for tort. Tort damages
would include consequential damages that might not be available
in a breach of contract action.
In the Cease Electric case, the Wisconsin Supreme Court held
that electrical construction services performed by Cease Electric
were not subject to the economic loss rule because no product
was involved. Therefore, Cease Electric was liable to a disappointed
owner for tort damages as well as contract breach damages.
That was bad news for contractors because it appeared to subject
them to both contract damages and tort damages for defective
construction. However, the economic loss rule is an ever-growing
and changing legal doctrine and the Court has recently modified
its decision.
In 1325 North Van Buren, LLC v. T-3 Group Ltd., decided by
the Wisconsin Supreme Court on July 11, 2006, the Court held
that a project owner for a building renovation who had brought
an action against a general contractor to recover for breach
of construction contract and negligence in carrying out professional
services, could not sue in tort for the negligence of the
contractor because the building renovation contract was a
mixed contract predominantly for a product rather than for
services and thus the economic loss doctrine applied to bar
negligence claims against the contractor. Obviously, since
the Cease Electric case held that the electrical contractor
could be sued in tort for negligently providing electrical
construction services while the 1325 North Van Buren case
held that a general contractor cannot be sued for negligently
providing general construction services in a building renovation
project, the application of the economic loss rule to the
rendition of construction services remains somewhat in doubt.
In 1325 North Van Buren, the construction contract entered
into between the contractor and the owner called for the renovation
of a warehouse into condominiums. The construction contract
contained 102 pages allocating the risk of loss between the
parties and provided for express warranties, insurance and
bonding requirements, a broad form indemnification agreement,
authority of the owner’s architect to reject nonconforming
construction work, the right to withhold compensation in the
event of a termination of the contract, and other risk allocation
provisions. The Supreme Court observed that this extensive
written construction contract between two sophisticated parties
containing all the bargained-for risk allocation should call
for the application of contract law rather than tort law.
However, the Court observed that if a contract is purely a
service contract, the economic loss doctrine does not apply
and tort actions may be brought against the contractor, citing
the Cease Electric case. The Supreme Court then observed that
if a contract is a mixed contract for products and services,
whether the economic loss doctrine applies depends upon whether
the contract is predominantly for a product or for services.
The defendant, T-3 Group, argued that the contract was mixed
in nature and was predominantly for the providing of a product
and therefore subject to the economic loss doctrine. The owner
argued that the contract was purely a service contract and
was controlled by the holding in Cease Electric.
The Wisconsin Supreme Court held that the contract was a
mixed contract rather than a pure service contract such as
in Cease Electric. In distinguishing the Cease Electric case,
the Supreme Court held that the electricians were hired to
wire a ventilation system supplied by the customer and the
contract was a simple oral contract growing out of a longstanding
informal business relationship. Furthermore, the Court noted
that the electricians were paid by the hour, and all they
had to do was to follow a one-page wiring schematic. The Supreme
Court held that under those circumstances it had little difficulty
in concluding that the contract was purely for services.
The Court held that it would apply a predominant purpose
test to determine whether under the totality of the circumstances
the predominant purpose of the construction contract was to
provide a product rather than a service. The Court observed
that the parties had used an AIA standard form agreement where
the contractor is also acting as construction manager and
where the general contractor enters into direct subcontracts
with subcontractors. The Court noted that AIA comments suggested
that when the owner enters into such a contract, the contractor
becomes contractually bound to provide labor and materials
for the project.
Further, the Supreme Court noticed that the general conditions
of the contract called for total construction of the work
including that provided by subcontractors, encompassing all
labor and materials, equipment and services. The Court held
that was different from the Cease Electric case, where only
services were rendered. Accordingly, the Supreme Court held
that under such circumstances of a mixed contract that included
obligations to provide a constructed building through the
rendition of all the services necessary to provide it, the
contract was a mixed contract and that the economic loss rule
would apply. This prohibited the disappointed owner of defective
construction services from suing the contractor in tort for
all the damages naturally flowing from the defective construction,
and limited the disappointed owner to the damages that the
parties had agreed to in the construction contract.
Most construction projects call for the providing of labor
and materials with the objective of constructing a real estate
improvement that could be regarded as a product. The Wisconsin
Supreme Court in its decision in 1325 North Van Buren held
that the renovated building was a product and that the owner
could not therefore sue the contractor responsible for defective
work for negligence but only for breach of contract, and recover
only the damages permitted under the contract. It follows
that work performed under construction contracts will be regarded
as the providing of a product as well as a service and therefore
subjects owners to the economic loss rule, which prohibits
the disappointed owner from suing a contractor in negligence
for consequential damages arising out of defective construction
work.
Design professionals who provide only a professional service
are nonetheless liable to a client for professional negligence
and can be sued both for breach of contract and tortuous negligence.
It is doubtful that the economic loss rule will ever apply
to design professionals because they provide a service rather
than a product. Yet, it can be argued that architectural and
engineering plans are products, and where those products are
defective, causing an owner to be disappointed, the economic
loss rule applies. Only time will tell whether such an argument
is adopted in Wisconsin.
Robert J. Kay is the senior partner in the law firm of
Kay & Andersen, S.C. and devotes his time to representing
professional engineers, architects, contractors, material
suppliers, and owners of construction projects. Please feel
free to contact him at (608) 833-0077 or at rjkay@kayandandersen.com.
TOP |
6. |
WSPE 2007 Governors New Product Awards
(GNPA) Competition and Banquet |
| The official WSPE 2007 GNPA Call for entries
should be available on our state website (www.wspe.org)
by Friday, Oct 6, 2006. Please consider having your company
enter the competition or forward the Call to a company that
you know may be interested in entering. Last spring, thirteen
products from eleven different companies qualified to enter
into the competition. WSPE will enter four 1st place winners
into NSPE’s 2007 PEI PNA awards competition. Rockwell
Automation (Milwaukee, WI) won this year in NSPE’s mega
category with their MCS-ES Solid State Overload Relay.
WSPE’s 2007 GNPA competition is our 36th annual event
and is Wisconsin’s most prestigious new product awards
recognition. GNPA applications are due February 12, 2007.
The awards ceremony and banquet is Thursday evening April
19, 2007 at the Sheraton Milwaukee Brookfield Hotel, Brookfield,
WI. As WSPE members, please consider attending the banquet,
which will be emceed again by Tom Zalaski, WFRV-TV News Anchor,
Green Bay, WI. Last year Tom did a fantastic job and is looking
forward to being this year’s emcee.
The GNPA banquet will precede WSPE’s Discovery Conference
(DC), which will be on Friday April 20, 2007 at the Sheraton.
Our Waukesha Chapter will host the DC. So please, plan on
attending both events and make the GNPA banquet and the DC
your local chapter April outing.
Please contact me if you have any questions about the GNPA
competition or referrals.
Thank you.
Dale R. Swenson, P.E.
WSPE 2007 GNPA Chair
414-343-8452 wk ph
dale.swenson@harley-davidson.com
TOP |
7. |
Welcome New WSPE Members! |
| The WSPE board of directors would like to
extend a heart-felt welcome to the following new WSPE members:
Waukesha Chapter:
Eugene E. Sheedy, Jr., PE, Edward E Gillen Co.
Curtis A. Czarnecki, EIT, Assistant Engineer, Yaggy Colby
Associates
WI Valley Chapter:
Robert D. Givens, PE, Program Manager, OMNNI Associates Inc.
NW Chapter:
Michelle L. Markofski, Grad Student University of North Dakota
SW Chapter:
Lee D. Gasper Galvin, PE, Lloyd Inc.
New members contribute to the growth, strength, and leadership
of the WSPE in enhancing its recognition as a leading voice
for Professional Engineers throughout Wisconsin and promoting
excellence in engineering.
TOP |
8. |
An Engineer Trying to Make a Difference |
| It's beyond taking it. He simply won't take
it anymore. But what is this 'IT'---the white elephant in
the room? And who is this 'HE' who won't take it?
IT is the current political campaign climate in Wisconsin,
and the disgrace our politicians (regardless of party affiliation)
have put upon our former 'clean' government.
HE is John Klus, one of us, a WSPE member for the last 40
years.
It all started on a visit to Finland, where John has been
consulting for over 25 years. He was lamenting among friends
and colleagues about several prominent Wisconsin politicians--the
ones who have been in the news, either entering a plea bargain
for reduced jail time or going to trial and then jail.
"How," John asked his Finnish friends, "could
Wisconsin's state government campaign system have become so
corrupt, while Finland has one of the least corrupt."
One woman piped up, "Simple, John, it's your fault."
John was aghast and asked her to explain. She simply told
him it is up to the people to keep their politicians in check.
He is stirring up this trouble because to do nothing results
in cash for corruption. It's time for us to return political
campaigns to the politicians and politics to the people.
He is determined to take the pledge to vote only for candidates
who:
- follow the citizens' wishes, not that of special interests
- abide by ethical principles
- support and work for complete public financing
The trouble he is causing has led to him proposing a pledge.
He is signing it. He is asking thousands of Wisconsin voters
to sign it. He is hoping that everyone running for office
this year will, at the very least, react to the possibility
that those who have pledged will turn out to vote in large
numbers and, at best, take the pledge themselves.
Interestingly, Finland has a much better political cross
section of citizen backgrounds including five engineer members
of parliament from the Helsinki University of Technology.
Engineers, in John's estimation, are the most highly ethical
professionals who avoid politics because of the existing environment
and corruption stigma. He proposes we turn that around and
take back the government FOR THE PEOPLE. He wants politicians
in office who are role models for our society, that have integrity,
and set good, ethical examples, not those who behave in ways
that simply embarrass us.
Check out his Web site: http://whoisjohnklus.com
The Pledge:
I want my vote to count!
I pledge to vote for only those Wisconsin political candidates
who support
and work for full public funding of political campaigns.
About John Klus
He was born and raised in Armstrong Creek, Forest County.
An avid sportsman, he is a member of the engineering faculty
at the UW who has been consulting with manufacturers and the
Helsinki University of Technology in Finland. And keep in
mind, John is NOT running for political office and NEVER will.
For more information, please contact: John Klus, 608/222-1416,
klus@charter.net
TOP |
|
|
|
|
|
|
