The Straight Line Newsletter — Issue #13
Message from the President
Some people transcend easy categorization, defining themselves through their broad intelligence, unswerving drive, and confident individuality. David Croft is one of those people.
Over decades of service, David crafted a unique reputation as both a tireless defender of architects and a just source of knowledge and experience across architecture, construction, insurance and human nature. From judges to under-writers, those involved in architectural professional indemnity came to respect David’s integrity. His work – chronicled in his Claims Stories, – reflects his commitment to the profession and his deep understanding of humanity: both its foibles and its strengths.
As notable as David’s personal character, is the legacy he has created. At first single-handedly and then with the team he built, David created a group of architects who understand insurance, combined with insurance and legal professionals who understand architects. This approach continues to distinguish Pro-Demnity from other insurers and reflects David’s conviction that an architect’s perspective is required in order to properly defend an architectural claim.
When looking at the many changes around us, we sometimes overlook all that has stayed the same. With his wisdom, empathy, discipline, innovation, and honesty, David demonstrates the timeless traits of a true professional. As we continue to navigate through these very strange times, we are thankful to have such a strong example to remind us of what is right and just. As a role model and through his irreplaceable Claims Stories, David continues to guide us.
We wish David a happy, well-deserved retirement.
— Bruce H. Palmer, President & CEO
David Croft – Architect, Advocate, Adventurer, Author … and Retiree
Byron Treves
Former President & CEO, Pro-Demnity
For over 30 years, David has been a colleague, friend and trusted confidant. Office lunch hours were always packed with discussions on interesting insurance issues.
David developed the role of the mandatory plan claims handler, which combined the roles of insurance claims examiner and adjuster into one person, while providing architectural expertise to every claim, as well as instructing legal counsel and managing the relationship with the architect (the defendant). This was unique. Effectively, he inserted architecture and knowledge of the construction into the claims process, which had previously been dominated by lawyers and insurance adjusters. It was not unknown for a mediator (retired judge) to request David to sit next to him to explain the technical aspects of the building failure – a great compliment. It is reasonable to believe that David saved the mandatory plan millions in damage payments. It should also be recognized that David cared and supported his colleagues, friends and family. It was a privilege to have known and worked with him.
The name David Croft, OAA, FRAIC is not one that regularly pops up in glossy architectural magazines or awards citations. In fact, many of you may not recognize the name at all – unless, that is, you have been defended in one of the nearly 6,000 claims for professional errors and omissions that Pro-Demnity Insurance (and the Indemnity Plan before that) has handled over the past 30-plus years. In that case, you will “Claims Manager” (also Vice President of Claims), whose job it has been to protect practices and individual architects, as well as defending the profession against disrepute, embarrassment and loss of stature. This has been no mean feat.
Under David’s steady guidance and according to his example, a growing number of Pro-Demnity staff member – other architects, legal personnel and insurance experts – have been equally engaged in insuring, educating, protecting and defending Ontario architects.
David is retiring at the end of this year, after three decades of service to the profession. There are very few people to whom the word “irreplaceable” might apply, but David may be considered one of them. Among David’s many distinctions:
- He has been acknowledged within the insurance industry as possibly the leading negotiator for architectural claims – an honour that has enhanced the reputation of Pro-Demnity and the OAA, internationally.
- He has established and maintained an exceptionally high professional reputation with Lloyd’s, the world’s largest insurance and reinsurance market-place, with £74.8 billion in assets and £19.7 billion in premiums.
- He has proven that the claims process is vastly improved by the involvement of architects with knowledge and training in insurance. On the basis of “architects insuring architects,” overseas reinsurers have demonstrated their confidence in David and his team by declaring them best equipped to handle claims involving their exposure – an exceptional honour.
“I first met David thirty years ago, while attending a preliminary meeting about a claim against an architect. In what I soon came to appreciate was his signature style, he spent the first half of the meeting listening to the architect’s explanation of the facts giving rise to the claim and the second half conducting a withering cross-examination, that in all fairness, would be the envy of the most seasoned of counsel. David has an uncanny ability to probe the story and get to the heart of the issue. Always on the architect’s side, David guided the claims process with a steady hand from inception to conclusion. And, his encyclopedic knowledge of the subject matter was always appreciated on all sides, including, albeit begrudgingly, by opposing counsel.“
– Andrew Lundy, Brunner and Lundy, Toronto
The Claims Stories
Twenty-seven years ago, Pro-Demnity began publishing Claims Stories, case studies of actual claims handled by Claims Manager David Croft. Architectural practice, it turns out, is not nearly as dreary and uneventful as many people imagine.
The caveat is that the wrong kind of excitement in architectural practice may lead to legal and financial peril. David’s stories follow the mold of the radio show Dragnet, later to become a TV show, and a number of movies. Dragnet was the progenitor of Law and Order, and the model for almost every police procedural in existence. The show always began with a voice-over announcement: “The story you are about to hear is true; the names have been changed to protect the innocent.”
Fittingly, David’s entirely factual stories begin with the caveat: “names and places changed to protect the innocent, and partially innocent, also the guilty.” David’s very first story, one of the shortest and least complicated in the collection, appeared in August, 1993. It describes the case of an architect who ventures out of his depth and ends up in deep, dirty water.
As an example of harsh professional reality, Chapter 2 includes a section on “Legal and Financial Risks.” Lewis explains the utter necessity of having professional liability insurance, due to the ever-increasing expectations of clients. Whether the claims are legitimate, frivolous, or somewhere in between, the financial and emotional toll of fighting a claim can be considerable. He further points out the paradox that simply by having liability insurance, architects become attractive targets for lawsuits. This section is fittingly followed by a the chapter’s final section, entitled “Disillusionment.”
Case #1
On a difficult site, an architect exceeds the limits of his expertise and fails in his duty to the owner as “inspector of work,” assuming liability for incorrect work.
PARTIES
Plaintiff
The Hills, Norman and Marie
Defendants
Lucas Bering, Architect
Flood Brothers, General Contractors
Cross Claims
Both defendants against each other
Context
The Hills had requested that Bering design a house for them that would also be suitable for a relative with a disability. The architect designed sloped paths to entrances and avoided steps.
The house required a septic field, but the site was steeply sloped from the rear down to the road. So the architect located the septic field beside house, with landscaping berms around the house and grading that prevented natural run-off. The house was subject to frequent flooding.
Pleas
The Hills stated, “We refuse to pay the balance of the money owed to the contractor, and the holdback, until the problem is solved.” As against the architect, they stated “We hired an architect to look after the construction of our residence, and we have serious damages that speak for themselves as to liability. Our architect failed in his duty.”
At trial, the owners recounted harrowing experiences of working at midnight in mid-winter, digging trenches to redirect flood water. The architect Bering’s defence was that he had only indicated the “general arrangement.” The contractor was responsible for the placing of the septic field. Levels and dimensions were to be verified by the contractor, with discrepancies brought to the attention of the architect, etc. As the architect, he did as much as he was able, giving verbal directions to workers and shooting his own levels.
The contractor Bert Flood claimed that he had recommended to the architect that the house be placed a foot higher, but this suggestion had been rejected. This was confirmed in written evidence. He also claimed that the level of the septic field was determined by the local authority, also confirmed by evidence. He further claimed that the architect had interfered with the work and would not listen to reason.
Judgement
The judge found that both defendants
(the architect and the contractor) were jointly and severally liable. The owner had a right to expect the architect to ensure against major errors. The contractor had a duty to protect the owner against errors that were clearly demonstrable.
Claims Control Analysis
The architect should not have intervened in the location of the septic system, but allowed a specialist to do it. He should also have insisted that a landscape architect or surveyor be engaged to advise on such a difficult site. His reliance on oral evidence – “I told him to dig a swale in this or that location” – proved worthless.
The judge did not buy into the idea that “review” is a lesser duty than “inspection.” He stated the architect’s duty by quoting from Hudson’s, tenth edition, the construction law bible: “An architect must properly supervise the works and inspect them sufficiently frequently to ensure that the materials and workmanship conform to contractual requirements …,” etc.
Post Script
The contractor proved to be insolvent. The architect/Indemnity Plan paid the full cost of the new site drainage system.
Lesson to be Learned
There should be no half measures when it comes time to review the work in progress. Forget the fine print. If you are on the scene of the error and don’t correct it, it will be yours.
As with many of David’s stories a little further analysis, yields even more valuable lessons:
- When dealing with a difficult site, an architect should hire professional consultants to help with the problems.
- Always issue written instructions, have your client sign off, and keep the instructions as records. Memories of verbal instructions are unreliable and of little value in a legal action.
- What an architect might call a “review,” a judge might see as an “inspection.”
Pro-Demnity is planning to republish all the Claims Stories, so that they will be available for architects on into the future.
The Straight Line is a newsletter for architects and others interested in the profession. It is published by Pro-Demnity Insurance Company to provide a forum for discussion of a broad range of issues affecting architects and their professional liability insurance.
Publisher: Pro-Demnity Insurance Company
Editor: Gordon S. Grice
Design: Finesilver Design + Communications
Address: The Straight Line c/o Pro-Demnity Insurance Company 200 Yorkland Boulevard, Suite 1200 Toronto, ON M2J 5C1
Contact: editor@pd-straightline.com
Pro-Demnity Insurance Company is a wholly owned subsidiary of the Ontario Association of Architects. Together with its predecessor the OAA Indemnity Plan, it has provided professional liability insurance to Ontario architects since 1987.
Questions related to the professional liability insurance program for Ontario architects may be directed to Pro-Demnity Insurance Company. Contact information for the various aspects of the program can be found on the Pro-Demnity website: www.prodemnity.com
Pro-Demnity Insurance Company makes no representation or warranty of any kind regarding the contents. The material presented does not establish, report or create the standard of care for Ontario architects. The information is by necessity generalized and an abridged account of the matters described. It should in no way be construed as legal or insurance advice and should not be relied on as such. Readers are cautioned to refer specific questions to their own lawyer or professional advisors. Letters appearing in the publication may be edited.
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