An ACEC Proposal for Balanced
Indemnification Provisions
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In 2012, ACEC Washington led a successful effort to amend RCW 4.24.115, the “anti-indemnification statute”, to include architectural and engineering services its protections.” Prior to that change, A/E firms could be and were held liable to indemnify owners for losses that were not causally linked to a firm’s own acts or omissions (i.e. lack of negligence).
After passage public owners were forced to address their indemnification provisions, but did so with varying degrees of adherence to the statutory changes. There was also one specific provision that was broadly promulgated amongst municipalities and also used by other public owners. This provision is what ACEC Washington has come to call the “standard indemnification provision.” This provision generally contains a paragraph that makes indemnitors liable for all losses and costs (just as before passage of the amendment). Then there is second paragraph usually then provides that, if the contract is subject to RCW 4.24.115, then the indemnitor is liable only for their own negligence. Notwithstanding, the interaction between the two paragraphs is uncertain, the legal theories involved confusing, the arguable extent of damages is large, and the possibility of insurance coverage being denied is real.
Notwithstanding this situation, we did not want to just suggest an alternative and argue about wording differences. We believed that this would not have been constructive and would have, instead, only have led to intractable posturing. So, we decided to take a different approach, even though is would be much more effort and time consuming. We started with the premise that thoroughly explaining “why” we were arguing for changes would be equally as important as the “what” we were arguing. The first part was to begin early contact with public owners, their legal counsel, and even their insurers to hopefully lay the groundwork for a coming open a dialog regarding an indemnification provision which would be more fair and balanced and in the best interests of both parties.
Of course, this area of the law is very complex, very nuanced, and not easily explained to not only laypersons, but also to attorneys, risk managers, and elected officials. Regardless, we pushed forward and began writing a document outlining a different mindset. Our goals were to explain (1) why this matters so much to A/E firms, (2) why this should equally matter to public owners, (3) why this negatively affects small, minority, and woman owned firms, and finally, (4) why there is a better and more balanced approach. This effort has been completed with the publication of our paper:
ACEC Proposal for a Balanced Indemnification Provision
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Mark your calendar for these exciting upcoming events:
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ACEC Washington Decides to Oppose Initiative 1631
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After considerable discussion and careful thought, the ACEC Board of Directors voted to oppose
Initiative 1631
, the so called “Carbon Tax Initiative.” While the Board of Directors lauds the initiative’s goals of carbon reduction, it was nonetheless decided that ACEC Washington could not support the Initiative for these reasons:
Question of Legality
– Initiative 1631 is rooted in the concept of imposing a “fee” on large polluters. This is in contrast to imposing a tax on those polluters. While to some, this distinction might seem inconsequential, the distinction is actually critically important and one that will undoubtedly lead to lengthy litigation should the Initiative pass. This is because if the charge is a tax, then under the 18
th
Amendment to the Washington Constitution, the Initiative could not expend funds in the manner it directs. The 18
th
Amendment provides:
[a]ll fees collected by the State of Washington as license fees for motor vehicles and all excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund
to be used exclusively for highway purposes.
Not surprisingly, it is clear that the Initiative attempts to avoid this restriction by classifying the instituted charges as fees rather than as taxes.
The question of fee versus tax also raises...
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Salary Survey Coming Soon!
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The 2018 ACEC WA/OR Salary Survey will be available after the October 3 Salary Survey Review Breakfast. The salary survey is an invaluable resource for consulting engineering firms and we obtained data from more than 120 firms in Washington and Oregon this year. The cost is $500; however, there is a $250 discount for ACEC Washington member firms and participating non-member firms. If you are an ACEC Washington member firm who participates, your firm will receive the 2018 Salary Survey at
no charge
. If you did not participate, you can contact
Linda Roux
to purchase the 2018 Salary Survey.
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Help Us Reach Our PAC Goal!
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Every year, each “Member Organization” in the country is assigned a specific goal to raise funds for The American Council of Engineering Companies Political Action Committee (ACEC/PAC). Each and every year, ACEC Washington has been successful in that effort. However, this year we are unfortunately falling short and we need your help before the end of 2018.
OUR GOAL: $26,188
RAISED TO DATE: $17,165
AMOUNT TO GO: $9,023
Please help us reach our goal by making a contribution to ACEC/PAC today. Just fill out the
ACEC/PAC Contribution Form
. It can be emailed directly to ACEC/PAC at the address on the form or you can send it to Linda Roux here in Washington State,
lroux@acec-wa.org
, and she will make sure it gets to ACEC/PAC. If you donate $200 (or multiples thereof), you will also be eligible for entry into the
Fall Sweepstakes where you can win up to $10,000!
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WEPAC Educates Legislators About the Business of Engineering
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The
W
ashington
E
ngineers
P
olitical
A
ction
C
ommittee (WEPAC) does in Washington State for state candidates what ACEC/PAC does for federal candidates in Washington D.C. WEPAC supports candidates who understand and appreciate the “business of engineering.” WEPAC is bipartisan and is supported primarily by contributions from member firms. This is an important difference from ACEC/PAC which is limited to individual donations.
WEPAC makes decisions, with input from the ACEC Washington Board of Directors, as to which candidates to support, based upon a number of factors. These factors include: the nature of the issues which are expected to be relevant in the coming legislative session, whether a candidate has historically supported ACEC Washington positions, the committees upon which a candidate sits, and whether a candidate is in a position of leadership.
For 2018, WEPAC has decided to provide contributions to a number of candidates
WEPAC Contributions 2018
which meet this criteria. If you have any questions or thoughts, please feel free to contact Van Collins
vcollins@acec-wa.org
to discuss.
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Affiliate Member
Spotlight:
Enginuity Advantage
Enginuity Advantage, LLC
is an engineering industry focused staffing/recruiting firm located in Everett. Their team of experienced recruiting professionals are well-versed in the engineering space. Enginuity prides itself on being the go-to local provider of high-level recruiting support. Enginuity partners with many ACEC Washington firms and has successfully facilitated the hiring of hundreds of key professionals over the past decade
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We want to hear from you! Would you like to to see your firm highlighted? Do you have suggestions for seminar topics or ideas for events? Pressing legislative issues you'd like to see ACEC tackle? Let us know!
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