Are Energy Pros the OB-GYNs of the Real Estate Industry?

I was just looking over ACCA's new revised standard out for comment:

Existing Homes Evaluation and Performance Improvement - ANSI/ACCA 1...

I often try to imagine this industry at scale. When I do I begin to worry about how much liability these earnest new professionals are taking on -- especially in contrast to contractors and/or other pros  they may follow behind -- specifically those held to much narrower scope standards such as ACCA 4 (HVAC Maintenance), ACCA 5 (Quality HVAC Installation), licensed brokers, home inspectors, etc.

 With such broadly defined responsibilities, will their rates of malpractice (and associated insurance costs) eventually be higher?

 Two easily overlooked things that sound potentially expensive to me are the requirements to:

  1. Identify "any exterior or interior moisture issues", and
  2. Inspect the pool and note "type of suction outlet cover(s) and flow rating".

Please don't misunderstand me. Malpractice in any profession is always ugly, and I'm not defending it for a minute. But this is still a fragile new industry.

Are we positioning energy pros to be the future risk-magnet ob-gyns of the real estate industry?

Sure, others may want to shift liability to someone else, but do we really want to do this to ourselves?

If anybody has talked these issues over with their attorney or their insurance underwriter, or has any experience defending a claim, I'd be eager to hear your thoughts... either online here, or offline (in confidence).

 

PS - I'd love to be told I'm wrong about this.

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Even though checking for those items were may not have been on the previous check list.  An aggressive lawyer and a disgruntled customer could have still made a case that you should be checking for them - obvious safety and energy related items.   All it would take is the plaintiff's lawyer to track down a  couple of good expert witnesses that always check and you would be toast.

Documenting as part of the new standard - is an easy way to remind users to check.   They've added it to protect the industry as well as themselves.  

Professional errors and omission liability insurance is always a good idea,  the insurance companies like it when you adopt and follow standards such as the proposed ACCA revision.

As for the insurance climbing higher -- perhaps,  but rate of premium growth is also dependent on the other members of the profession,  if many choose to ignore the checks - they are sued - premiums for everyone will go up.  If members self police and keep training requirements up  - premiums will match the risk.

I'll take flak on this from other architects

but

Architects have been dealing with errors and omissions a very long time, some say a couple of thousand years.  At the least, now a days we have legally mandated PERSONAL liability that cannot be escaped by declaring bankruptcy.

now

The way I see it, part of the reason architects have less and less input into the construction process, has been a well intentioned but ultimately misguided attempt to limit risk.  In retrospect what we should have been doing for the last 50 yrs or so is lobby for limiting liability, limiting the ability of courts to broaden architects liability, up to and including finding architects insurers liable, not due to negligence, but merely because all the contractors, clients, and investors filed bankruptcy, as they often do in times of trouble, and someone has to pay the victims when a building fails.  I kid you not, that's from a lawyer, albeit about 15 yrs ago.  You do not want the energy industry to go the same way.

I'd suggest

All the industry groups needs to band together, create a STRONG national association of some sort, if only for legislative purposes, and lobby at the highest levels for comprehensive for reasonable limits to liability.  Many businesses have their liability limited to the charge for services or product.  Such as the software industry.  How do you think they got that protection?  They lobbied at the Ffederal level.

What to do until then?

I'd embrace those checkilists, including a version for the client.

Equate items to the fees you charge.

For example:  Is building moisture a BIG issue, does it require more time and effort, and experience, to address adequately.  You bet!.  Educate your client about it's importance, about it's complexity, and why the dollar number next to that item on the checklist will give you the time, help, equipment, etc. you need to protect them.

I hate to give away a good idea, but, check out my website RoughDesigns for a You Tube video that could well become your "Moisture Services" ad, it's the EIFS video under the "Architects and You Tube" button.

Please don't let us be the Proctologists.
Please.

LOL Corbett, Actually, I believe it's the insurance investigators and attorneys who usually say "bend over".

Thanks to all who responded.

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