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A monthly publication from the Wisconsin Society of Professional Engineers
December 2008 Edition
WSPE's President's Corner |
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Fellow P.E.s, While last Friday is commonly referred to as “Black“ Friday by the multitude of shoppers, I can truthfully say that today (December 1) is “Black” Monday for me. First of all, having spent the last week in the Northwoods hunting the wiley whitetail, it is my first day back at work. As many of you can relate, now is the time when I pay the price for taking time off. Secondly, the Pack dropped another game in typical fashion, and it is beginning to look like there may not be a post season appearance for them. And finally, not only being a Monday, I slid back to work on some fairly slippery roads this morning. What a great welcome back! The WSPE Board of Directors met on November 6. In an effort to make it easier for the Board members to attend the Board meetings and make the meetings more effective and efficient, we are attempting to incorporate a new meeting format. In addition to primarily focusing on issues that require Board action, the meetings are being held by teleconference, thereby eliminating the need to travel. We will evaluate the success of this initiative as we move forward. A couple of items from the Board Meeting:
Just a reminder that the 2009 WSPE Discovery Conference and Governor’s New Product Award dinner are scheduled for Thursday, April 23, 2009 in Green Bay. The Discovery Conference will focus on topics relating to the future of energy. If you know of any good speakers, please forward their contact info to me. We are in the final stages of identifying several speakers and have some room on the program for others. The GNPA dinner will be held in Lambeau Field. Please put this conference on your schedule. My next message will not be until next year, so until then, have a great and happy Holiday Season. Michael J. Lefebvre, P.E. |
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SPONSOR |
Entries Encouraged for WSPE’s 2009 Governor’s New Product Awards Competition |
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| You are invited to enter the Wisconsin Society of Professional Engineers (WSPE) 2009 Governor’s New Product Awards (GNPA) Competition. Applications are due February 16, 2009. The awards ceremony and banquet will be held Thursday evening, April 23, 2009 inside Lambeau Field’s Legends Club Room, Green Bay, WI. For applications, click here. The 2009 GNPA winners will be entered into NSPE’s (National Society of Professional Engineers) 2010 new product competition. This year, two companies from WI (InSinkerator and Cummins) won at NSPE’s 2008 competition. For additional information, please contact Dale R. Swenson, P.E., WSPE Chair, 414-343-8452, dale.swenson@harley-davidson.com. |
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| SPONSOR
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Two Volunteers Needed for BEPR |
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| WSPE ‘s Board of Engineers Professional Responsibility (BEPR) is looking for two can-do people to serve. Can you volunteer your time and talent? We prefer representatives from the Fox River Valley Chapter and the Western Chapter. If you’re able and interested, please contact Nancy Short at n.short@wspe.org or 414-908-4950 x135. |
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College of Engineering, Math and Science (EMS) Expo April 2, 2009 |
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Mark your calendars! This expo has two purposes: to inform youth what engineering, mathematics and science are all about, and to provide incentive for the challenge awaiting those of you who choose a career in one of these fields. You will have the opportunity to observe students and faculty “in action” and to see what people educated at UW-Platteville College of Engineering, Mathematics and Science can do. Look for more information soon at: http://www.uwplatt.edu/EXPO. |
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Indemnity Agreements in Standard
Design Contracts |
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Recently, I heard several views expressed concerning indemnity agreements in design and construction documents. The discussion particularly focused upon the practice of requesting prime and subcontractor to indemnify the owner and architect or engineer against their own negligence. The standard contracts of the American Institute of Architects and the National Society of Professional Engineers for EJCDC contain indemnification provisions. The AIA Document A201 - 2007, § 3.18 INDEMNIFICATION provides as follows:
In EJCDC C-700 - 2007, the indemnification is found in § 6.20 and provides as follows:
I do not believe that either of these sections have been interpreted
by an appellate court in Wisconsin. Under § 3.18 of AIA Document
A201 - 2007, the contractor is the indemnitor and the owner, architect,
architect’s consultants and their agents and employees, are
the indemnitees. Under EJCDC C-700 - 2007, the contractor is the
indemnitor and the owner, engineer, and their officers, directors,
members, partners, employees, agents, consultants and subcontractors
are the indemnitees. However, the use of the word subcontractors
among the indemnitees is confusing but maybe no doubt meant to refer
to the subcontractors of the owner or engineer and not the subcontractor
of the contractor. Under § 3.18 of AIA Document A201 - 2007, the indemnification of any damage, loss, or expense in the form of bodily injury or property damage is “only to the extent caused by the negligent acts or omissions of the Contractor, a Subcontractor, or anyone directly or indirectly employed by them or anyone from whose acts they may be liable...” But the sentence continues with the additional phrase, “regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.” That phrase clearly conveys the meaning that the contractor is indemnifying the owner and the design professional against the owner or the design professional’s own negligence. However, that phrase does not call for indemnification for the owner’s or design professional’s sole negligence. Rather, the indemnification by the contractor is effective even though the owner or the architect is partially responsible for the injury or the property damage. Under EJCDC C-700 - 2007, the indemnity provision found in § 6.20 A. contains the limiting phrase, “but only to the extent caused by any negligent act or omission of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work or anyone for whose acts any of them may be liable.” Therefore, under § 6.20 A., the contractor only indemnifies the owner and design professional against the contractor’s negligence, leaving the owner and design professional responsible for their own negligence, whether sole or partial. EJCDC C-700 - 2007, § 6.20 C. also clarifies that the indemnification obligations of the contractor does not extend the indemnification to the engineer, its officers, directors, members, partners, employees, agents, consultants or subcontractors arising out of the preparation or approval of, or the failure to prepare or approve maps, Drawings, opinions, reports, surveys, Change Orders, designs or Specifications; or the giving of directions or instructions, or failing to give them, if that is the primary cause of the injury or damage. It appears to this writer that the indemnity called for by EJCDC C-700 - 2007, § 6.20 C. is a more reasonable risk sharing provision than that found in AIA Document A201 - 2007 § 3.18. As the reader can quickly detect, these indemnification provisions are fertile ground for judicial interpretation and argument. In the next issue of this e-news I will discuss whether the provisions are likely to fall within the statutory restrictions found in § 895.447 of the Wisconsin Statutes (formerly § 895.49), which provides: 895.447 Certain agreements to limit or eliminate tort liability void. (1) Any provision to limit or eliminate tort liability as a part of or in connection with any contract, covenant or agreement relating to the construction, alteration, repair or maintenance of a building, structure, or other work related to construction, including any moving, demolition or excavation, is against public policy and void. (2) This section does not apply to any insurance contract or worker’s compensation plan. (3) This section shall not apply to any provision of any contract, covenant or agreement entered into prior to July 1, 1978. Attorney 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 visit www.kayandandersen.com. |
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Welcome New WSPE Members |
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The WSPE board of directors would like to extend a heartfelt welcome to the following new WSPE members:
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. |
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