In the risk management department we come across a lot of professional service agreements. And we review the standard terms and conditions to help insureds identify problematic clauses that could present problems with the coverage provided by their professional liability policy. However, legal professionals and insurance advisers often do not provide a detailed review of the description of the scope of services because they do not have the expertise to provide such a review. The scope of services as described in the executed agreement is often at the heart of a claim, and design professionals need to carefully review the scope of services so that it is clear to the client what it is that you are providing. It should also be clear to the client what services you are not providing. Be sure to detail the information the client is supposed to provide to you and state clearly that you have the right to rely on such information.
When I come across a poorly drafted scope of services, I wonder how the design professional’s responsibility will be interpreted by a judge or jury if there is a claim. My fear is that if asked to make a determination about the responsibility of the design professional based on such a poor scope description, the judge or jury will ultimately find that the design professional is responsible for the lack of clarity in the scope of services. In one case that I came across here at Schinnerer, a landscape architect’s scope of services stated that they would be on site to monitor construction; in reality the client was willing to pay for only monthly visits to the job site during the construction phase. That ambiguity meant that the landscape architect contributed to the settlement of a claim involving the contractor’s faulty installation of irrigation pipes, which were installed when the landscape architect was not on site.