Who's Working Your File?
Richard A. Rice, PE
Mutual Engineering, Inc. - MEI
You, an adjuster or attorney, have a claim or case come across your desk that has an engineering component to be investigated. You contact an engineering firm and request an onsite inspection and, in some instances, an engineering report. The engineering report you receive is signed by a licensed professional engineer (PE). However, you discover that the person who performed the onsite inspection was not a PE. Do you accept the report given that a PE did not perform the onsite inspection?
Back in the April 2017 edition of Omnia Forensis Ingenariae (OFI), I expressed concerns regarding the practice of using non-PE's to investigate insurance and legal matters. Since then, I have had many discussions with people on this subject. In addition, I sent a survey to all the adjusters and attorneys who are members of the Southern Loss Association (SLA) (www.southernloss.com). These discussions, and the results of the SLA survey, are offered in this article.
What is a non-PE?
My experience reveals three types of non-PE's are sent to perform onsite inspections. There is the non-technical person who is recruited from non-technical jobs where basic engineering or trade/vocational knowledge is not required. (Unfortunately, they continue to be recruited.) There is the degreed engineer who is acting as an Intern under the direction of a licensed PE. And, finally, there is the Technician who has achieved knowledge and experience in a trade/vocation over many decades. For this article, only the Intern and Technician will be discussed.
Use of Engineering Interns
An engineering Intern is someone who has received an engineering degree and is working under a licensed PE in order to be able to take the PE exam someday. As I have stated in the past, the use of recently graduated engineering Interns is extremely vital in the less contentious and less adversarial "design world." It is in the "design world" where engineering Interns learn the skills, and gain the knowledge to be licensed PE's. However, in the "legal world" where things are very adversarial, one must ask: Is it wise to send an Intern to perform forensic engineering inspections? Should the case go to trial or arbitration, whose testimony will have more weight: the engineering Intern, or the licensed PE who is bound by ethics, laws and cannons? What does the market think?
What About the Use of Technicians?
A good friend and colleague is a mechanical engineer PE in the northeastern US. His forensic engineering practice involves heating, venting, air conditioning (HVAC) issues. My mechanical PE friend routinely sends Technicians who have certifications and decades of real-world HVAC installation and problem-solving experience to the onsite inspections. Their role is to gather data and evidence onsite. Of all the arguments I have heard, the use of Technicians, in this instance, is the most reasonable. However, what if another firm sends a PE to gather the data and evidence. Again, what does the market think?
Survey of SLA Adjusters and Attorneys
On June 12, 2017, a survey question was sent to all the adjusters and attorneys who were members of the SLA. The question was:
Should non-PE's investigate forensic engineering matters for PE's to sign off on later?
The majority of responses were "NO" at over a 4 to 1 ratio. Representative comments from the "NO" respondents are as follows:
"Should the PE be required to testify at trial, I want them to be able to give first-hand accounts of what they found and not open the to door to a plaintiff arguing that the expert be disqualified because his opinion is based on evidence he received second hand."
"The purpose of hiring an engineer is to lend credibility to cause and origin determinations and prepare for possible litigation. I would not feel comfortable putting a non-PE on the stand under examination."
"In most cases where I deem an expert in an engineering matter is required, I expect them to be a licensed PE as that is the expertise I'm looking for. While a non-PE may be talented, the credentials of the PE is important in convincing other parties as to the accuracy of their findings."
It is my opinion, with only a few exceptions, that when a forensic engineering investigation is requested, a licensed PE should participate at all stages. Otherwise, the findings in the engineering report will be challenged and possibly discarded by a judge.
Many of my colleagues/competitors will contend that my belief in the use of PE's at all stages is not based on market demands. They would be mistaken. Those providing forensic engineering services should take note that an insurance company recently rejected 20+ engineering reports from one forensic engineering firm because Interns performed the onsite inspections. The reports were signed off by the manager with a PE license who was not involved with the onsite inspections. The insurance company upper management were afraid that a judge would find the insurance company guilty of fraud by accepting those reports. Can you hear the market, now?
As I stated in other publications, given the court decisions regarding fraudulent forensic engineering reports involving the Northridge Earthquake in California, Super Storm Sandy, and Hurricane Katrina, it is not surprising that attorneys, insurance companies and insurance policy holders are holding forensic engineering investigations and reports to a higher standard.