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In this new installment of the Informative Blog on the civil responsibilities of the engineer and the practical application of the coverage granted by the policy subscribed with Adartia and Mapfre, we will focus on what is contained in the Building Regulation Act, which provides for the direct responsibility of the designer to the owner, not only when the source of the damage is his own, but also when he is in the performance of another professional who provides erroneous information that he uses to develop the project .
The standard states that "designers who contract the calculations, studies, opinions or reports of other professionals, will be directly responsible for damages that may result from their insufficiency, inaccuracy or inaccuracy, without prejudice to the repetition they may exercise against their authors ".
The most recurring case derived from this precept is that of the damage from the errors contained in the geotechnical study, but what happens if it does not exist because the designer did not foresee it?
1.- Background
In 2016, our insured, industrial technical engineer, carried out the Project and Construction Management of a set of 6 industrial buildings without defined activity. The set consisted of a porticoed structure of prefabricated concrete pillars and beams, with gabled roofs and exterior enclosures and interior partitions by means of prefabricated concrete panels. The pavement that served as pavement was a mechanically swirled reinforced concrete floor.
In November 2018, the company that owns the ships detects displacements of the expansion and foundation joints, so it sends a burofax to our insured, claiming € 85,000.
In order to argue its claim, the owner commissioned an expert report from an architect, as well as a geotechnical report determined among other things, that in accordance with the LOE and the Technical Building Code it was necessary that the project of our insured would include as an annex, a geotechnical study, which seems to have been overlooked. The conclusions of the same come to determine that, due to the observation of a series of separations between constructive elements, a seat by descent of the land takes place on which it supports the foundation, which could not be valued in the absence of a geotechnical study .
Although the project of our insured mentioned an eye inspection and collection of geotechnical study data in nearby buildings, it did not include it as such, which would entail its direct responsibility.
2.- Evolution
Once Adartia was informed of the facts, Mapfre appointed an expert who proceeded to request the necessary information to determine the possible liability of our insured, as well as to determine the existence of a geotechnical report.
According to his expert report, the movements observed were natural and typical of the type of construction of the ship, having occurred the separations in joints, without in any case observed descents or seats of the structure , or damage. of a possible seat as determined by the expert reports of the property, with which he disagreed radically.
However, our expert determines that the insured had effectively ignored the need to include a geotechnical study in his project, which could have assumed his responsibility in the event that the damage was due to land characteristics, for not having foreseen their need.
As a strategy and based on the expert report issued by its designated professional, Mapfre issued a letter of non-liability of its insured addressed to the owner, finding us currently awaiting news, as well. as in the event of a legal claim, in order to defend the interests of our insured.
3. Conclusions
The situation described, reveals several aspects that must be taken into account:
• Civil liability in accordance with the LOE is required both for own acts or omissions, and for acts or omissions of the persons for whom it is to be held liable. Within this second group of cases, Article 17.5 II states that designers will be directly liable for damages caused by errors in calculations, studies, opinions or reports they hire from other professionals. But in addition, the doctrine determines that the designer must respond when he has not requested a geotechnical report and damage occurs due to the characteristics of the land, being the result of a lack of foresight, which will give place to a responsibility of the designer by own fact; specifically, for non-compliance with its duty to draft the project in accordance with current regulations (Article 10.2b LOE).
• The importance of having a policy that protects our professional civil liability, even in the case of not being responsible, as the insurance company provides us with technical and legal means to proceed with our defense and coverage. .
• The broad responsibilities faced by a profession such as engineering, where they must take into account not only their own facts, but the facts of those for whom I have to answer.
photo: SichiRi on Pixabay