In 2010 a concrete company (and their subconsultant geotechnical firm and construction materials testing lab) was sued by the homeowner. Their house was exhibiting cracking. The foundation slab was designed as a post-tensioned slab based on the geotechnical report by Louisiana Testing and Inspection (LTI). The homeowner chose to sue LTI (via the concrete company that hired them) for failing to identify expansive clay soils and for using the "dry prep" method to perform plasticity lab testing in lieu of the more thorough "wet prep" method. The wet prep method typically yields a PI a few points higher than the dry prep (i.e. PI=24 instead of 19), which can affect the perception of risk of soil movement as well as the foundation slab design parameter values.
Any lab using the dry prep method can be described as lazy. I only allow wet prep in my lab.
It turns out that significant stripping and clearing was performed for this lot and subsequent investigation showed some expansive clay was present on the site. An expert witness geotechnical engineer for the defendant hypothesized that the Builder filled in a large tree stump and root bulb areas with fat clay, or that the widely spaced borings (1 or 2) simply just missed the zone of expansive clay (most of the site was low PI soils apparently) by pure chance. The condition was chalked up as an anomalous condition that just did not show up at the drilled (explored) locations (boring logs). He noted the circular pattern of the swelling condition as validation of the clay backfill theory. There was no reference to plumbing leak or tests for leaks.
The trial court ruled in favor of the concrete contractor (and LTI) (defendant) because:
- the plaintiff failed to prove that LTI's conduct was the cause-in-fact of the house damage.
- the court found that LTI did not discover the swell potential by pure chance
- the court found that LTI did not improperly report testing.
- the judge found that the plaintiff failed to prove that another design would have been used, and that the swelling would have occurred anyway.
I have a feeling that if i was the expert witness for the homeowner there would have been a better argument for holding the geotech (LTI) responsible (i.e. for poor site characterization and design parameter selection instead of looking at wet prep vs dry prep). They took the wrong approach by suing based on reported data (lab testing) instead of the overall characterization or design itself, but without more info i cannot really comment intelligently on the case.
The good news for geotechs is the court requires a notable burden on the plaintiff. The court requires 4 things for a finding of standard negligence:
1. Was the conduct in question a cause-in-fact of the harm that occurred?
2. Did the defendant owe a duty to the plaintiff?
3. Was that duty breached?
4. Was the risk and hard caused within the scope of protection afforded by the duty breached?
LTI got off, but only because the homeowner and their team took a poor approach to this case. LTI still lost money through the time they had to spend on this case, all for using a dry prep method in the lab.
Sunday, December 2, 2012
Sunday, September 23, 2012
Geotechnical study required for all new construction
Here are examples of structural engineers, geotechnical engineers, or other project team members getting into trouble for either not performing a geotechnical study or for being reckless in their inspections or design. Names of individuals are left out (only initials used) because the point is to learn from these mistakes. Although companies get to deal with the claim or lawsuit, individual PE's also pay a price to the Texas Board of Professional Engineers (TBPE) (their own wallets opened and license suspended) for mistakes, so never flippantly call an engineer "conservative" or "too safe".
2012: An engineer in Azle, Texas, was suspended (license) by the Board for 4 years and fined $4,380 for "failure to practice engineering in a careful and diligent manner." A gabion retaining wall he designed failed and as part of the judgment the Texas Board of Professional Engineers noted he did not perform a geotechnical study ("no geotechnical or soil tests").
2012: S.P. of San Antonio, Texas, had engineering license suspended two years and was fined $2,000 by the Board for certifying (signing off) on incorrect as-built information. A foundation repair plan consisting of 43 drilled piers and 5 footings was certified as completed by the engineer. A partial collapse led to the discovery that only 34 piers and 4 footings were installed. The engineer also had provided a drawing showing the locations of the 34 piers without association to a signed and sealed letter or plan (i.e. it should have been labeled a preliminary drawing at best). The board determined that the engineer's cert was misleading and his actions not careful or diligent, and he issued a drawing without a seal but also without the alternative preliminary designation.
2012: A.G. of San Antonio, Texas, was suspended 2 years and fined $1,500 for issuing a misleading certification letter, allowing foundation construction that was not per city code, and not being careful or diligent in his engineering practice. He certified a foundation repair as-built condition as meeting city code for 14-inch deep pier-footings, but city code requires minimum 24-inch deep footings.
2012: A Structural Engineering firm (Strand Systems) and Builder (Ramer Concrete) were sued by a homeowner for a distressed foundation slab (and home?). The homeowner was able to sue without a Certificate of Merit because the claim apparently was that the Structural Engineer did not perform a "pre-pour" inspection as he was contractually obligated to do so. Lesson: Pre-pour inspections are important and must be thorough (in this case slab thickness was too shallow) and should always be done, especially if you commit to do it in contract language.
2005: C.P. of Spring, Texas, was fined $1,500 for displaying a lack of knowledge of local codes and regulations within the locale of the project, and this lack of knowledge led to multiple submittals and delays for his client.
2005: G.H. of Amarillo, was fined $1,500 and suspended for 1 year for lack of care and diligence in reviewing a plan sheet prior to sealing and signing, and for not including his company title block on the plan sheet. The plan sheet included designs that had nothing to do with him, so he should not have signed it.
2005: K.S. of Lake McQueeney, Texas, was suspended 2 years and fined $3,800 for providing a pre-pour inspection letter (also referred to as a certification letter whether you like it or not) that did not indicate discrepancies that another individual found at the site (rebar size, rebar layout).
2004: T.O. of Austin, Texas, was suspended 3 years and fined $3,000 for an error or omission regarding structural loading calculations which when measured by accepted standards indicated his engineering for this project was not performed in a competent manner. The errors led to concrete columns cracking during construction which led to delays and cost overruns.
2004: J.C. of Plano, Texas, was suspended 2 years and fined $1,850 for falsely certifying that a foundation has been designed in accordance with PTI standards and soil data for conditions at the site. However, it was discovered that the soil data was from a different site, the geotech report referenced in his plans were for a site in a different part of the subdivision (= if you think you can just use geotech soil data from another block in the subdivision you are being reckless).
N.C. of Canyon Lake was fined $500 and formally reprimanded for failing to personally verify drilled shaft depths for piers under a house. N.C. was an expert witness in a case and his statements concerning pier depths were considered misleading.
W.L.P. of Plano, Texas, was fined $4,000 and suspended 2 years for submitting a structural design for a post-tensioned foundation slab for a custom house that ultimately did not perform well. The design was supposedly based on PTI method, but the geotechnical report used for the basis of his design was for a lot several blocks away and performed 19 months earlier. W.L.P. admitted the slab was underdesigned for the actual soil conditions later exposed at his site. To top it all off, W.L.P. had a conflict of interest for being both the Structural Engineer and the partial owner of the concrete company.
M.P. a Structural Engineer in Dallas, Texas, was fined $5,000 and suspended 2 years for providing a foundation slab design based on PTI, but he did not base his design on a site-specific geotechnial report (as required by PTI). His design was deemed misleading and not in keeping with generally accepted engineering standards or procedures. In addition, he signed and sealed the plans for another firm based on what was on the title block, and he had not notified the Board of his association with the other firm (you can list a second firm on your Board profile).
W.S.A. of Austin, Texas, was formally reprimanded and fined $500 for failing to use site specific geotechnical soil study to prepare a residential foundation design. Statements on the plan sheet that the design was based on unconfirmed assumptions about the soil's stability were misleading and not in keeping with generally accepted engineering practices.
W.J.R. of Laredo was fined $500 and ordered to cease and desist from practicing engineering. W.J.R. prepared geotechnical reports that included engineering recommendations for foundation options, but W.J.R. was not a licensed PE. (watch out for geotech letters or reports from non-PE's, this is a reckless violation of state code).
D.L.J. of Kingsbury, Texas was fined $1,250 and formally reprimanded for signing and sealing inspection letters involving inspections performed by coworkers (i.e. technician). The inspections apparently expressed false information concerning type of existing foundation and depth of piers installed. D.L.J. was fined because he did not provide "adequate direct supervision" over his employees, or review the inspection letters adequately, or inspect the site himself.
D.P. of Dallas, Texas, was fined $1,000 and formally reprimanded for affixing his PE seal to structural plans prepared by an employee of his part-time business. Although D.P. had discussions with the employee and directed him to prepare the design, he was not personally present during the employee's performance of the design. D.P. was deemed to have not provided direct supervision over his employee during the performance of the design, which is required in Texas.
M.G. of Friendswood, Texas was fined $2,000 and ordered to cease and desist from using the term "engineer" in any title or marketing literature and from practicing engineering. M.G. identified himself as a "consulting engineer" in a residential inspection report, but M.G. did not have a PE license.
B.D.J. of Rockwall, Texas, was fined $3,000 and suspended 2 years for producing a misleading report and certification, for not conducting his inspection of a residence in a careful and diligent manner, and for actions contrary to generally accepted standards and procedures. B.D.J. was criticized for not keeping appointments with the homeowner and members of the repair crew stated they never saw B.D.J. at the site (failed to perform inspection). The Engineer was also noted to have not performed a slab elevation survey to help justify repair recommendations. The Engineer was also noted to have not realized repair work was going to damage the patio addition but should have provided recommendations to avoid such damage.
J.E.C. of Fort Worth, Texas, was ordered to cease and desist from practicing structural engineering (suspended 5 years). It was alleged that during his testimony as an expert witness in a lawsuit he made statements regarding the effect of pier to beam contact and foundation level tolerances that appeared to be misleading and were not supported by adequate modeling, calculations, or analysis and without fully disclosing the basis and rationale for his opinions.
R.W.P. of Houston was reprimanded for taking 4 months, 8 months, and 9 months to deliver residential inspection reports for 3 sites after an inspection was completed. The reports also contained errors (misleading reports).
N.L.S. of Houston was fined $940 and suspended 9 months for signing/sealing a geotechnical report written by an individual (as another company or legal entity) who was not a PE nor a formal employee or employer of the Engineer. This is deemed aiding and abetting an individual (and company) in the unlicensed practice of engineering.
2012: An engineer in Azle, Texas, was suspended (license) by the Board for 4 years and fined $4,380 for "failure to practice engineering in a careful and diligent manner." A gabion retaining wall he designed failed and as part of the judgment the Texas Board of Professional Engineers noted he did not perform a geotechnical study ("no geotechnical or soil tests").
2012: S.P. of San Antonio, Texas, had engineering license suspended two years and was fined $2,000 by the Board for certifying (signing off) on incorrect as-built information. A foundation repair plan consisting of 43 drilled piers and 5 footings was certified as completed by the engineer. A partial collapse led to the discovery that only 34 piers and 4 footings were installed. The engineer also had provided a drawing showing the locations of the 34 piers without association to a signed and sealed letter or plan (i.e. it should have been labeled a preliminary drawing at best). The board determined that the engineer's cert was misleading and his actions not careful or diligent, and he issued a drawing without a seal but also without the alternative preliminary designation.
2012: A.G. of San Antonio, Texas, was suspended 2 years and fined $1,500 for issuing a misleading certification letter, allowing foundation construction that was not per city code, and not being careful or diligent in his engineering practice. He certified a foundation repair as-built condition as meeting city code for 14-inch deep pier-footings, but city code requires minimum 24-inch deep footings.
2012: A Structural Engineering firm (Strand Systems) and Builder (Ramer Concrete) were sued by a homeowner for a distressed foundation slab (and home?). The homeowner was able to sue without a Certificate of Merit because the claim apparently was that the Structural Engineer did not perform a "pre-pour" inspection as he was contractually obligated to do so. Lesson: Pre-pour inspections are important and must be thorough (in this case slab thickness was too shallow) and should always be done, especially if you commit to do it in contract language.
2005: C.P. of Spring, Texas, was fined $1,500 for displaying a lack of knowledge of local codes and regulations within the locale of the project, and this lack of knowledge led to multiple submittals and delays for his client.
2005: G.H. of Amarillo, was fined $1,500 and suspended for 1 year for lack of care and diligence in reviewing a plan sheet prior to sealing and signing, and for not including his company title block on the plan sheet. The plan sheet included designs that had nothing to do with him, so he should not have signed it.
2005: K.S. of Lake McQueeney, Texas, was suspended 2 years and fined $3,800 for providing a pre-pour inspection letter (also referred to as a certification letter whether you like it or not) that did not indicate discrepancies that another individual found at the site (rebar size, rebar layout).
2004: T.O. of Austin, Texas, was suspended 3 years and fined $3,000 for an error or omission regarding structural loading calculations which when measured by accepted standards indicated his engineering for this project was not performed in a competent manner. The errors led to concrete columns cracking during construction which led to delays and cost overruns.
2004: J.C. of Plano, Texas, was suspended 2 years and fined $1,850 for falsely certifying that a foundation has been designed in accordance with PTI standards and soil data for conditions at the site. However, it was discovered that the soil data was from a different site, the geotech report referenced in his plans were for a site in a different part of the subdivision (= if you think you can just use geotech soil data from another block in the subdivision you are being reckless).
N.C. of Canyon Lake was fined $500 and formally reprimanded for failing to personally verify drilled shaft depths for piers under a house. N.C. was an expert witness in a case and his statements concerning pier depths were considered misleading.
W.L.P. of Plano, Texas, was fined $4,000 and suspended 2 years for submitting a structural design for a post-tensioned foundation slab for a custom house that ultimately did not perform well. The design was supposedly based on PTI method, but the geotechnical report used for the basis of his design was for a lot several blocks away and performed 19 months earlier. W.L.P. admitted the slab was underdesigned for the actual soil conditions later exposed at his site. To top it all off, W.L.P. had a conflict of interest for being both the Structural Engineer and the partial owner of the concrete company.
M.P. a Structural Engineer in Dallas, Texas, was fined $5,000 and suspended 2 years for providing a foundation slab design based on PTI, but he did not base his design on a site-specific geotechnial report (as required by PTI). His design was deemed misleading and not in keeping with generally accepted engineering standards or procedures. In addition, he signed and sealed the plans for another firm based on what was on the title block, and he had not notified the Board of his association with the other firm (you can list a second firm on your Board profile).
W.S.A. of Austin, Texas, was formally reprimanded and fined $500 for failing to use site specific geotechnical soil study to prepare a residential foundation design. Statements on the plan sheet that the design was based on unconfirmed assumptions about the soil's stability were misleading and not in keeping with generally accepted engineering practices.
W.J.R. of Laredo was fined $500 and ordered to cease and desist from practicing engineering. W.J.R. prepared geotechnical reports that included engineering recommendations for foundation options, but W.J.R. was not a licensed PE. (watch out for geotech letters or reports from non-PE's, this is a reckless violation of state code).
D.L.J. of Kingsbury, Texas was fined $1,250 and formally reprimanded for signing and sealing inspection letters involving inspections performed by coworkers (i.e. technician). The inspections apparently expressed false information concerning type of existing foundation and depth of piers installed. D.L.J. was fined because he did not provide "adequate direct supervision" over his employees, or review the inspection letters adequately, or inspect the site himself.
D.P. of Dallas, Texas, was fined $1,000 and formally reprimanded for affixing his PE seal to structural plans prepared by an employee of his part-time business. Although D.P. had discussions with the employee and directed him to prepare the design, he was not personally present during the employee's performance of the design. D.P. was deemed to have not provided direct supervision over his employee during the performance of the design, which is required in Texas.
M.G. of Friendswood, Texas was fined $2,000 and ordered to cease and desist from using the term "engineer" in any title or marketing literature and from practicing engineering. M.G. identified himself as a "consulting engineer" in a residential inspection report, but M.G. did not have a PE license.
B.D.J. of Rockwall, Texas, was fined $3,000 and suspended 2 years for producing a misleading report and certification, for not conducting his inspection of a residence in a careful and diligent manner, and for actions contrary to generally accepted standards and procedures. B.D.J. was criticized for not keeping appointments with the homeowner and members of the repair crew stated they never saw B.D.J. at the site (failed to perform inspection). The Engineer was also noted to have not performed a slab elevation survey to help justify repair recommendations. The Engineer was also noted to have not realized repair work was going to damage the patio addition but should have provided recommendations to avoid such damage.
J.E.C. of Fort Worth, Texas, was ordered to cease and desist from practicing structural engineering (suspended 5 years). It was alleged that during his testimony as an expert witness in a lawsuit he made statements regarding the effect of pier to beam contact and foundation level tolerances that appeared to be misleading and were not supported by adequate modeling, calculations, or analysis and without fully disclosing the basis and rationale for his opinions.
R.W.P. of Houston was reprimanded for taking 4 months, 8 months, and 9 months to deliver residential inspection reports for 3 sites after an inspection was completed. The reports also contained errors (misleading reports).
N.L.S. of Houston was fined $940 and suspended 9 months for signing/sealing a geotechnical report written by an individual (as another company or legal entity) who was not a PE nor a formal employee or employer of the Engineer. This is deemed aiding and abetting an individual (and company) in the unlicensed practice of engineering.
Friday, September 21, 2012
Limit of Liability clause can actually work
Terracon was recently sued in federal court by Thrash Commercial Contractors.
Terracon was the testing lab for large fill masses being placed for a Mississippi site and apparently the testing frequency was inadequate and the General Contractor was forced by the Owner (a government agency) to remove the upper 6 feet of fill and re-install, and remove some concrete footings that were already constructed on the fill. A study had been performed to evaluate the fill and the conclusion was that parts of the fill were not properly compacted. Thrash sued Terracon for $300,000 in damages. Of course the Contractor claimed Terracon had poor oversight, and Terracon claimed the Contractor did not properly schedule inspections.
The case ultimately turned to the limit of liability clause in Terracon's contract. The testing lab fee was $14,900, and the limit of liability was $50,000. So Terracon fell back on this position and would not pay the $300,000. The court recognized the following:
(1) Was the contractor free to negotiate for a higher L.O.L.? YES ! Terracon had a statement stating the client could negotiate a higher L.O.L. for an additional fee. The contractor did not negotiate (ask) for such an increase.
(2) Was the amount of the L.O.L. reasonable relative to the fee? For a $14k fee, $50k in liability was deemed reasonable.
(3) Were there any conflicting provisions in the contract? The indemnity clauses protected Terracon from any negligence or omissions by the Contractor.
(4) Did the Terracon contract seek to indemnify even for its own errors? No.
So Contractor had no case on all 4 counts and lost the case for anything more than potentially $50k in damages (not the $300k sought).
I have since reworded our company's contract language :)
Terracon was the testing lab for large fill masses being placed for a Mississippi site and apparently the testing frequency was inadequate and the General Contractor was forced by the Owner (a government agency) to remove the upper 6 feet of fill and re-install, and remove some concrete footings that were already constructed on the fill. A study had been performed to evaluate the fill and the conclusion was that parts of the fill were not properly compacted. Thrash sued Terracon for $300,000 in damages. Of course the Contractor claimed Terracon had poor oversight, and Terracon claimed the Contractor did not properly schedule inspections.
The case ultimately turned to the limit of liability clause in Terracon's contract. The testing lab fee was $14,900, and the limit of liability was $50,000. So Terracon fell back on this position and would not pay the $300,000. The court recognized the following:
(1) Was the contractor free to negotiate for a higher L.O.L.? YES ! Terracon had a statement stating the client could negotiate a higher L.O.L. for an additional fee. The contractor did not negotiate (ask) for such an increase.
(2) Was the amount of the L.O.L. reasonable relative to the fee? For a $14k fee, $50k in liability was deemed reasonable.
(3) Were there any conflicting provisions in the contract? The indemnity clauses protected Terracon from any negligence or omissions by the Contractor.
(4) Did the Terracon contract seek to indemnify even for its own errors? No.
So Contractor had no case on all 4 counts and lost the case for anything more than potentially $50k in damages (not the $300k sought).
I have since reworded our company's contract language :)
Saturday, January 7, 2012
Met Cntr Bldg 10 Failure
A lawsuit concerning Met Center Bldg 10 in Austin, Texas, was settled, with the new owner being paid $1,000,000 by the project team (developer, contractor, structural engineer, and architect) including the geotechnical firm Reed Engineering. Soil movement appears to have caused extensive cosmetic and functional damage to the 350,000 square foot building. An 18-ft deep cut-off wall appears to be the plan to serve as a moisture barrier, in addition to some drainage improvements. Did the contractor or civil/structural plans not follow geotechnical recommendations? Or was the geotechnical report providing reckless or inadequate recommendations?
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