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Architects, Engineers
and Murderers
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| By Michael Shilale,
AIA, LEED, CHPC |
| September 18, 2015 |
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As published by NYSSPE |
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I have been a
licensed architect in NYS for 28 years.
Passionate and idealistic, I have always
believed that architects can help make a
better world and didn’t really worry too much
about my own financial future. Never did I
imagine that a dark cloud of uncertainty would
hang over our noble profession for our entire
lives.
Recently I was
reviewing my financial plan with an advisor.
He asked me what my expenses might be for
professional liability insurance in
retirement. I was surprised to learn that it
is not possible to purchase professional
liability insurance in retirement in excess of
the 3-5 year tail offered on most policies.
Since I always hoped to live more that 3-5
years after I retire, I was somewhat
concerned.
I began asking some
friends who were doctors and lawyers what
their long term liability was. I was
interested to learn that, for doctors in New
York, the Statute of Limitations for Medical
Malpractice is 2 years and six months. For
lawyers, the Statute of Limitations for Legal
Malpractice is 3 years.
I looked at other
professions and found that they too had a
reasonable Statute of Limitations for civil
negligence. If you manufacture a product that
hurts or kills someone, the Statute of
Limitations for Product Liability is 3 years.
If you drive your car into someone’s living
room, your Statute of Limitations for Property
Damage is 3 years. Slander is 1 year, Trespass
is 3 years; heck even Wrongful Death has a
Statute of Limitations of only 2 years.
You get the picture
and those are just the civil issues. What is
even more disturbing, as you may already know,
most criminal laws have a Statute of
Limitations. Robbery has a Statute of
Limitations of 5 years, Larceny has a Statute
of Limitations of 2 or 5 years; Assault, 2 or
5 years (Depending on the facts of the case);
Burglary, 2 or 5 years (Depending on the facts
of the case).
There is no Statute
of Limitations for murder in New York State.
So it seems that
only Architects, Engineers and Murderers have
a lifetime of looking over their shoulder for
a potential day of reckoning.
AIA National does a
nice job creating a compendium each year of
the Statute of Limitations and Statute of
Repose laws in each state (the difference
between the two is important but irrelevant to
our discussion here). Once again NY is at the
top, or at the bottom, of that list depending
on your perspective. As the only state, other
that Vermont, that has no Statute of
Limitations on third party lawsuits for
architects and engineers, NY once again leads
our nation in a category of dubious
distinction.
The AIA compendium
also does a good job of detailing the issues,
making a strong argument why this situation is
unfair, and referencing all the statutes that
exist nationwide. It states, “Because there is
no estimated shelf-life for a building, there
is a need to define a period of time after
which the architect can no longer be held
liable for personal injury or injury to
property. State legislatures typically have
found that that time period should be tied to
when the architect no longer has control of
the property, deficiencies in the design have
been or should have already been discovered,
and/or any injury to persons or property is
most likely to have been caused as the result
of something the architect did (or failed to
do).” AIA’s report goes on to state, “Without
legislation to protect design professionals
from unlimited liability, it might be possible
for an architect to be sued for an injury
suffered in or around a building that was
designed many years prior, even when the
injury is a result of improper maintenance or
other causes beyond the architect’s control.”
It seems our state
leaders have either ignored the issue or have
been impotent to affect positive change.
After ten years or
so in private practice I joined the local AIA
board of directors. I served as president of
the Westchester/Hudson Valley Chapter and went
on to serve two terms as Vice President of
Government Advocacy at AIA New York State.
From my earliest memory with AIA in New York,
a statute of limitation/repose on third party
lawsuits was part of our legislative agenda -
and it seems for over two decades nothing has
been done about this seemingly obvious
inequity. Architects tend to be naïve and not
well suited to petitioning our government for
redress. Much of our legislative agenda is
geared toward our clients or our communities,
not necessarily our members. While these are
noble pursuits, many can argue our legislative
impact over the last decade or so has been
mostly impotent.
While NYS has
undergone ground breaking transformation, in
areas never before thought possible, our
agenda has languished. Under the recent Cuomo
administration (Andrew not Mario) we have seen
a property tax cap, teacher evaluations, and
pension reform. These changes were previously
thought to be legislatively impossible. Change
is in the air. Presently, the former speaker
of the assembly and the former senate majority
leader are under indictment - it may now be
the time to act. I am not sure what the Statue
of Limitations is for the crimes they allegedly
committed;
however I am sure there is one. We should
demand fairness. No profession has the
lifetime liability exposure that architects
and engineers endure. I urge our leadership
and all our members to act. |
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© 2015 MICHAEL SHILALE
ARCHITECTS. ALL RIGHTS RESERVED |
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