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ACSM Bulletin online
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ACSM Bulletin | June 2008| #233
Ask Vic!
—O'Schinnerer
Q: I’ve seen in past Ask Vic articles the phrase “standard of care.” What is this standard? And where can I find it?
A: The standard of care is the legal standard all professionals are expected to adhere to when providing professional services, including surveying. It is not a “published standard,” but one that is established by expert testimony as to what are the professional standards and how are they applied in similar circumstances.
Clients of surveyors are sometimes confused about the standard of care applicable to surveying services. The law defines the standard of care for surveyors as, “The ordinary and reasonable care required and established by expert testimony of what a reasonable and prudent professional would have done under the same or similar circumstances.” It is the measure by which professional services are judged in determining legal duties and rights.
The law recognizes that professional services are based on reasoned judgment and that there is no one correct course of action. A client may want a precise definition of services and the ability to judge performance based on specific criteria incorporated into the professional services agreement. However, such exactness is not possible because of the unique characteristics of each project and the latitude allowed under law for the application of professional skill and experience to each project. The use of a standard of care provides an objective measurement of a surveyor’s services.
The common law standard of care applied to the performance of surveying services has been described as a “duty to exercise the degree of learning and skill ordinarily possessed by a reputable surveyor practicing in the same or similar locality and under similar circumstances.” It is this common law standard of care that is imposed on a surveyor if a contract is silent as to the standard of care.
While it is not unreasonable for a client who selects a surveyor on the basis of a special expertise or demonstrated competence to ask that a higher standard of care be met, the raised standard must be something that is attainable. Clients sometimes seek to generally change the common law standard of care by requiring that the surveyor perform to higher standards by including vague or absolute language such as a reference to meeting “highest professional standards.” Other clients, knowing that a vague standard such as the “highest” or “best” can never be met, include the language so that the surveyor is held to an unachievable standard, which in turn could lead to a claim of negligence in performing professional services.
When clients seek to change the standard of care, a discussion with the client is essential to examine the practicality of a modified performance measure. If the client selects and subsequently compensates a surveyor for special skills, experience, or talent, the definitional uncertainty of “highest” should be replaced with a measurable standard of care based on the qualifications used to select the surveyor. If the client is attempting to force the surveyor into a situation in which the surveyor cannot perform services without being in breach of the contract, the surveyor sacrifices many protections otherwise provided by common law as well as professional liability insurance.
The U.S. legal system recognizes that a surveyor cannot guarantee a perfect result, and professional liability insurance only provides coverage for damage caused by the surveyor’s breach of a reasonable standard of care. A standard that demands perfection essentially places surveyors outside their normal legal liability and insurance coverage.
The standard of care for professional and related services performed or furnished by the surveyor should be modified only with caution. If a client demands a level of performance beyond that consistent with due professional skill and care, the standard should be measurable, and the surveyor should receive compensation related to the increased services and risk assumed under such an agreement.
Q: In the past, I’ve been asked to perform construction stakeout services for several projects on tribal lands, but I’ve always declined. Now I am having second thoughts. Are there any issues that I should be aware of in providing construction stakeout and other surveying services on tribal lands?
A: Increasingly, surveying firms are providing services for Native American businesses and governments. Contracts for these projects are often governed by tribal codes and construed by tribal courts. In contracts for surveying services, there is often an explicit “choice of laws” provision. This provision specifies the judicial forum for resolving disputes under the contract and the provision is generally upheld if it is the result of negotiation between the contracting parties. In the absence of any such clause, state or federal courts would apply their jurisdictional rules. In a contract for surveying services for any Native American client, the surveyor would benefit by negotiating the application of a known set of laws, such as the laws of the state where the surveyor’s principal place of business resides. Avoiding litigation in a tribal court by mandating arbitration or mediation is especially prudent.
In most cases, each Native American tribe has a unique set of specific rules and codes of law. Rarely, however, are there precedents to guide tribal courts on complex matters such as design, surveying, and construction disputes. Although there is no uniformity from tribe to tribe, there often is a charter and related compacts and covenants that form the basis of each tribe’s law. In some instances, however, tribal custom prevails over any codified law and is often unspecified—testimony as to tribal custom is necessary. Only recently have tribal court decisions been recorded and published, making research into tribal law difficult and often ineffective.
Issues that often arise in contracts with Native American clients relate to the sovereign immunity of the tribe, the proper venue of claims, and the necessity of contract approval by tribal authorities. In some cases, issues include the approval of contracts by the Department of the Interior, identification of applicable codes and other regulations, and payment issues. While U.S. tort law maintains control over all non-Native American contracts, tribal law affecting contractual relationships is not subject to such authority.
Sovereign immunity means dominion over a defined and tangible territory and autonomy in matters of society and culture. Native American tribes exert influence over development and construction both on tribal lands and beyond tribal boundaries. This status precludes interference by federal and state courts on many issues of tribal governance and bars lawsuits against the tribe in state court. It also appears that tribal immunity extends to off-reservation commercial activities as well. Since jurisdiction is the power to enter enforceable judgments in disputes, the choice of laws and dispute resolution methods become increasingly important on projects designed for Native American sovereign nations.
In a typical suit against a surveyor arising out of surveying or stakeout services for the construction of a building for a Native American client, neither the federal nor state court systems will have jurisdiction. The general rule is that a state court does not have jurisdiction over a claim asserted by a non-Native American against a Native American if the claim arises on Native American land. And state courts often have no jurisdiction over civil claims involving a Native American for a contractual transaction outside of a reservation. For the most part, no state may assume jurisdiction without tribal consent. Local legal counsel should examine the applicable state legislation to determine the extent to which their state has acquired jurisdiction over civil claims that involve a Native American party or arise on sovereign tribal property.
A contract is not only a statement of the scope of services it also forms the basis of the professional relationship, including how disputes will be resolved. There is a possibility that disputes with Native American clients could be resolved in a forum experienced in the complexities of design, surveying, and construction. Most courts have held that a tribe may waive its sovereign immunity by agreeing to submit contractual disputes to binding arbitration. The surveyor can evaluate its contractual risks more clearly if it is able to negotiate that the forum for dispute resolution applies standard rules of mediation and arbitration.
As projects become more difficult to obtain, some surveyors are abandoning sound contract negotiation principles to secure work. If firms are pursuing commissions with Native American clients, prudent negotiation of contract terms is essential.
Negotiating Native American Projects
When faced with an agreement for professional services that is to be construed under Native American tribal law, three challenges need to be addressed. They are:
- Can tribal law be researched so that a reasonable expectation of the results of a dispute can be formed?
• Can specific legal codes or interpretations be referenced in the contract?
• Is an alternative dispute mechanism acceptable, such as inclusion of mediation by a recognized mediation service or arbitration under the American Arbitration Association rules, for example?
Unless a known body of law and convenient jurisdiction can be identified in the contract, the imposition of tribal law can be a significant and unmanageable risk.
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If you have a question regarding an insurance or practice management issue, email AskVic@Schinnerer.com and look for your answer in a future issue of ACSM’s Bulletin. Victor O. Schinnerer & Company, Inc., is the underwriting manager for the CNA professional liability program. Schinnerer and CNA have been the commended program of the American Congress on Surveying and Mapping since 1965.
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