A small silver lining in an otherwise difficult situation
By Liz Molina
Assistant Vice President, Senior Claims Examiner, Berkley Alliance Managers, a Berkley Company
May 10, 2021
As long as I have been managing claims for design firms, one of the primary risk management principles held by architects and engineers (A&E) professional liability insurance (PLI) carriers is that a design professional should avoid suing their clients for unpaid fees.
Why? Because a suit for outstanding fees is usually met with a counterclaim for professional negligence. And, while in general, those allegations trigger coverage under an A&E PLI policy, the attempt to recover the outstanding fees is not covered because fees are not considered damages as defined in A&E PLI policies. Unfortunately, the outstanding fees become part of the negotiations when attempts are made to resolve the negligence allegations. In most cases, the design firm has to significantly compromise its fee claim – and sometimes completely walk away from it – in order to get the negligence claim resolved, even when some of the negligence allegations lack merit or would be difficult to prove. This leaves the design firm frustrated because they end up not getting paid, while at the same time having to spend their policy deductible to defend and/or settle the negligence claim. In essence, they actually lose more money, which does not even include the lost billable time that was spent helping to defend the claim instead of working on projects that generated income.
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