Landscape architects nationwide are feeling the “growing pains” as their profession comes of age in the eyes of the public.

Even though overstated, I feel it needs saying over and over, we live in a litigious society. That litigiousness is not going to abate especially in light of the current scrutiny the insurance industry on a whole is being subjected to. Since the Trial Lawyers Association continues to spew forth its propaganda as the “would be saviors” for individual’s rights, landscape architects everywhere are finding themselves subject to an ever increasing number of lawsuits, more often than not frivolous, all in the name of protecting someone else’s rights.

As landscape architects are viewed as a h responsible profession and part of the design/construction team, they will find themselves increasingly named along with all other participants on the project in various types of litigation. Since it is often not cut and dried as to who may be at fault, especially in esoteric exposures involving aesthetics, we find judges ever more reluctant to release landscape architects early on in such litigation. For that reason, landscape architect’s professional liability (or errors and omissions) ends up being the source for defense coverage unless a claim (indemnity) is actually paid out. It is important to mention that your local attorney representing you, if you are sued, often may not be the best alternative for the defense of such a claim. We find a higher degree and percentage of success available when a specialist attorney is utilized. Unfortunately, these attorneys often bill their time at $125 to $200 per hour, often double that of general practice lawyers.

The largest potential exposures for you as a landscape architect include not just the design portion, but the construction phase of the project as well. This is grossly misunderstood by a great deal of landscape architects. A frequent comment that I hear weekly is “I don’t carry coverage because we are very careful in this office.” Let me state categorically that being careful will have little if anything to do with some worker or some other person being injured or killed on a jobsite and the uninsured landscape architect, along with everyone else, will indeed be named in such an action. Unfortunately, the cost for defending oneself is typically in the $3,000 h to $10,000 range, even in frivolous lawsuits. Since professional liability excludes coverage for jobsite injuries, it is critical that the landscape architect understand the need for comprehensive general liability purchased as a separate policy in addition to the errors and omissions policy. These two types of insurance policies compliment one another since they cover exposures excluded in the other policy. You are in no way duplicating coverage by purchasing both, instead you are covering separate exposures that both need covering. To buy one and not the other is tantamount to locking one door on your two door car while leaving the other window open prior to parking it on the city street for the night. There is no point in trying to lock it at all if it is not going to be done properly. It is for this very reason that many of the professional liability sources are now demanding that design professionals carry comprehensive general liability as a prerequisite in order to obtain professional liability.

The Claims: Subrogation and “Deep Pocket”

I had alluded to two primary types of claims typically brought against landscape architects. Those claims are for jobsite injuries and accidents (covered by comprehensive general liability) and alleged design errors (covered by errors and omissions).

Perhaps some examples might be helpful. In the first case, if some other firm’s employee is hurt on a jobsite and that worker is covered by the other firm’s workers compensation policy, it is conceivable that the workers compensation insurance company could turn around and sue other firms present on that job. This action is commonly known as “subrogation.” A more dangerous type of jobsite claim involves a non-employee, such as children, coming onto a jobsite, I even after hours, getting hurt or killed and seeking financial compensation from anyone and everyone remotely involved in the project. This type of claim is potentially more dangerous because it is more susceptible to the “deep pocket theory” which essentially says that an injured party is entitled to recovery regardless of whom is at fault. Such litigation is long and costly even if just a defense is being provided. Allow me to leave you with one important thought concerning this type of jobsite incident or claim. Whether you choose to insure with a comprehensive general liability or not is a decision only you can make, but rest assured, the exposures still exist, primarily because of other participants in the project. Those exposures exist whether or not you insure for them. Most professional liability insurance companies are commonly requiring their clients to carry comprehensive general liability in order to obtain professional liability for these very reasons.

Errors and omissions or professional liability is a second area of potential claims. This is best described as “design liability.” This covers a landscape architect or planner for real or alleged errors or flaws in the design that resulted in injury to people or property. Typical examples of such claims can include specifying (the opinion) a tall, growth habit plant on a street corner which ultimately is the proximate cause of an auto/pedestrian accident because of blocked vision (the incident). In such a claim, the injured party will attempt to prove that the landscape architectshould have known better than to specify a high growth habit plant anywhere near an intersection. Unfortunately, that very claim could occur with any plant material, especially if it had not been maintained. In that scenario, the injured party will certainly try to prove that some other plant material not requiring maintenance or not having a growth habit nearly as tall, would have been a more prudent choice in preventing the injury that ultimately occurred. The landscape architect or planner then has a burden of proving, often unsuccessfully, that the choice was a prudent one. Other common claims can involve alleged errors when water run off from altered land elevations causes the waters to flood a given property. It matters little that the run off may have occurred because of the “100-year down pour.” The injured (damaged party) will allege that the design was insufficient for the required water run off.

Another area of potential large claims involves specifying children’s play equipment. Since equipment nowadays is, for the most part, specified and few would dare attempt to design their own for a particular project, the issues concerning injuries on such equipment have shifted somewhat. Do not assume that, as the specifier of equipment you have no exposure. To the contrary, the injured parties will allege that if the equipment were indeed safe, the child would not have been injured or killed. Courts hold children under the age of twelve responsible for very little in terms of their actions so if equipment is not being properly utilized by younger children, improper usage provides no defense. Futhermore, the vast majority of play related incidence somehow involve the lack of sufficient or proper cushioning materials in the play area. It may be that you have properly specified the cushioning materials at the time of construction, but you are not protected unless you also address the maintenance needs for replenishment of the cushioning material long after the job has been left to the owner. Make certain such issues are addressed in your specifications to cover your backside completely.

Your comprehensive general liability is most often purchased as part of a “package” policy which covers office contents as well as the liability exposures. If your office is in your home, your homeowners cannot cover such exposures, it will only cover someone injured at your home but will not extend to jobsites at all. Furthermore, any business related property found in your office at home is specifically excluded from any coverage. That would include a computer for billing or CADD system or anything else utilized as business property. Such a policy will typically cost $250 to $500 in all states except California where you can expect a minimum of $500 because of the increased litigiousness of that state.

Professional liability or errors and ommisions continues to be viewed as a specialty line of insurance. For this reason, prices for coverage have not become competitive with other lines of insurance during the most recent competitive market cycle. It is imperative to review the specific exclusions of any professional liability policy. If there is an exclusion specific for bodily injury and property damage, then you can rest assured you are purchasing protection of little or no value at all. Unfortunately, the vast number of insurance agents fail to understand the important differences between professional liability policies (sad, but true) so you must rely on your own review to make certain that coverage is appropriate for your needs. Since there are really very few sources of professional liability for landscape architects and planners, it is quite simple to do a comparison of those serious markets that are legitimate and properly written.

To avoid claims of any kind, the most important aspect always comes down through review of all work (more eyes are always better than fewer), a judicious program demanding, not requesting, certificates of insurance for those people you do business with and finally, a business operating procedure requiring documentation in your files at any time there is a change that is meaningful. Unfortunately, you won’t know which changes are meaningful until you wind up in court. So it is best to document anything that might result in misundersanding.

?EUR??,,????'??Being safe and careful” is truely insufficient protection to adequately protect yourself as a landscape architect or planner, you need both, comprehensive general liability and professional liability to compliment each other. Good Luck!