Geo Week News

July 20, 2004

Laser Scanning and the Law

Laser scanning and the law was a topic of considerable interest at SPAR 2004. This week’s SparView highlights some legal issues for owners, contractors and surveyors to consider when procuring or providing laser scanning services. Who’s qualified to execute laser scanning? Do professional licensing laws apply? What performance guarantees are available, and what remedies for nonperformance? Is there any generally accepted defense against claims for malpractice? In many cases the answer will vary state by state, country by country, industry by industry. Moreover, change in the law lags technological change – 55mph speed limits weren’t needed in the horse-and-buggy era – so new regulations as well as case precedents are bound to emerge as laser scanning continues to spread. We don’t pretend to offer answers, but rather questions intended to help savvy practitioners and clients safeguard their respective interests.

Who’s qualified to execute laser scanning?

Competence to execute laser scanning can be found in qualified, experienced individuals not only in the survey profession but also in the fields of engineering and dimensional control. Indeed, executing a project often requires some expertise drawn from all these areas. Yet today there’s no such thing as a Licensed Professional Laser Scanner in the manner of professional engineers or professional land surveyors. (It’s unclear at this point whether such a professional guild will ever emerge – this could turn out to be something better left to industry than government.) Are there jurisdictions where laser scanning services are considered to be either surveying or engineering, and required by law to be provided by a licensed professional? Where laser scanning can be executed by unlicensed providers, what remedies are available if the service or deliverable is found to be defective? What if a licensed engineer provides a defective deliverable because information from an unlicensed provider was defective – who’s liable?

There appear to be few settled answers at present. What we do know is that laws vary widely among jurisdictions, case law and precedent seem to be quite thin when it comes to combining these three disciplines, and industry will probably have to cope with a changing patchwork of regulation and precedent for some time to come. “’Surveying’ is what the state laws and state boards say it is,” according to Mark Buhrke, chief surveyor with Fugro Chance, Inc. “For example, in Texas ‘dimensional control’ is not licensed or regulated, whereas in states like Florida it is. In Texas, if you’re measuring industrial facilities for the sake of dimensional control, you’re pretty much okay without a license; you only need to be licensed if you’re doing land surveying. On the other hand, Florida, Alabama and California are states with extremely stringent requirements.”

What can service providers – and companies that engage them – do to protect themselves? “In general, as a licensee I would be concerned about taking laser scanning into states where I am not a licensed surveyor,” Buhrke told us. “In a state like Florida, whoever owns and operates the laser scanner laser had better be a surveyor licensed by that state, or else work with one who is, to ensure they stay within the law.”

Some might find it surprising that in some states, dimensional control of industrial facilities is regulated much like land surveying. “You could argue that a private owner such as an oil company could use an unlicensed service provider inside its own plant for laser scanning, even in Florida,” Buhrke observed. “But in states with a strong licensure law, I wouldn’t do that. Even though I’m personally licensed in Florida, our firm is not, so when we work there we always partner with a firm that’s licensed in that state. It’s perfectly legal for a licensed survey firm to
engage technical specialists who are not licensed in that jurisdiction.”

Against this background, savvy practice for owners, contractors and service providers is to address these issues when specifying and contracting a project, and to inform themselves of current law in the relevant jurisdiction to be sure all parties are in compliance. All parties are well advised to make sure the necessary assets and insurance coverage exist to warrantee any claims.

Standard of care

Lively discussion at SPAR 2004 followed a presentation on laser scanning’s legal impact by Joseph A. Barra, a partner in the Design/Construction Group of Gadsby Hannah LLP who is both an attorney and a civil engineer, and has represented owners, construction managers, contractors, design professionals, sureties and construction lenders.

Design/surveying practice

Of particular importance to laser scanning service providers is the legal concept of “standard of care,” according to Barra. In the design industry, the professional standard of care is generally used as a defense to claims for malpractice against design professionals (including surveyors). The law recognizes that the design of construction projects (as compared to the design of manufactured goods) is not an exact science and that, unlike in manufacturing industry, the designer does not have thousands of opportunities to perfect its design. Thus, absent a contract provision otherwise, surveyors and other design professionals are not held to a “standard of perfection,” but instead are generally required to exercise that degree of care, skill, diligence and judgment that is required of similar professionals in that geographic region given the same or similar circumstances. With respect to laser scanning, the service provider may be furnishing a topographical survey of existing conditions. Assuming that the service provider is properly authorized to provide such service, that surveyor must perform its services in accordance with the professional standard of care, Barra explained. Under this scenario, if the service provider’s conduct fell below the appropriate standard, then it would be considered negligent, and thus would be liable to its client for any damages proximately caused by its negligence. (Barra points out this does not address whether, in performing this service, the service provider is practicing “surveying” within the context of the various licensing statutes. Service providers are best advised to check with the licensing boards of their own jurisdictions to determine whether providing such services constitutes the unauthorized practice of Surveying.) Notably, the service provider may, in some states, also be exposed to persons other than its client for negligence, Barra reports. Some jurisdictions hold providers of such services liable to those who are found to have reasonably relied upon the surveyor’s services provided that such reliance was also reasonably foreseeable. Thus, service providers must be mindful as to who is in the chain of receiving such information.

Reduce number of disputes and litigation costs

Another benefit of using laser scanning is its potential to reduce construction disputes and litigation costs. Barra notes, “I make better friends when I can keep clients out of litigation.” Laser scanning has the potential to accomplish this objective by tracking the project’s various
milestones so as to determine if design elements are being installed in the correct place. Likewise, laser scanning can reduce litigation costs by providing attorneys (and thus juries) with a three-dimensional depiction of the project at various stages of construction, and thus capture where and when the project went astray.

Project cost models

Barra views risk mitigation as laser scanning’s primary legal impact on capital project execution. “Laser scanning tends to mitigate certain risks inherent in the design and construction industry,” he said, and discussed these risks in the context of various project cost models.

Lump sum

The lump sum model is generally considered the most appropriate when the scope of the project is well defined, the plans and specifications are complete and the risk of encountering unanticipated field conditions is low. The use of laser scanning to provide more
accurate and complete existing-conditions data mitigates the risk of encountering unanticipated field conditions and thus the risk of project cost overruns is reduced, Barra noted.

Cost plus

The cost plus model can be used when a project is fast-tracked, that is, when the plans and specifications are usually not complete and the contractor is selected to begin construction during the design process. Despite the plans’ less-than-complete status, the
contractor estimates what the project will cost (Guaranteed Maximum Price) provided that the balance of the design is consistent with what has already been developed to date.

Another reason to select the cost plus model is because of the uncertainty of unforeseen conditions, Barra pointed out. If a site’s existing conditions have not been adequately characterized (i.e., ledge outcroppings), then the contractor will absorb more risk because it is
betting that the site conditions are relatively constant. Additionally, the owner will spend more for the project because the contractor will inflate its price to cover that contingency. With laser scanning, that risk is mitigated because there is generally more accurate data with which to
define the site. The more (correct) data that is provided, the less the risk.

NOTE: Spar Point Research LLC is not qualified to render legal advice, and nothing in this article is to be construed or applied as such. Spar Point Research urges readers to obtain the advice of qualified counsel before acting on any issues discussed herein.

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