Experience Area F - Practice Management Flashcards
What is PI insurance also known as?
professional negligence insurance
indemnify the insured for legal liability arising from their negligent acts or omissions.
What is a Claims-Made Policy?
With a claims-made policy, your coverage only kicks in when you file a claim during the policy period.
Under NZACS are employees covered?
Under the current NZACS policy, employees of member firms are automatically insured.
Does NZACS cover you in your new firm, if your previous employer is no longer in business so a client sues you directly?
YES THEY DO!
NZACS covers employees faced with a claim against
them arising out of prior employment.
you should check this with each new employer however as firms can opt out
When should Architects notify a potential insurance claim?
- when an actual claim is made against them
- when they become aware of the likelihood of a claim against them
- if they learn of circumstances which may lead to a claim against them.
What are some examples of situations where you may notify your insurer?
- Discovering an internal office mistake, even if unnoticed by others.
- Allegations of a mistake from another team member (consultant or contractor).
- Issues with design work by another consultant, which the Member coordinated.
- Contractor claims delays due to late information receipt.
- Client contacts the Member post-completion about a latent defect.
- Disputes between other parties involved in the project.
- Client jokingly mentions suing for a specific reason.
- Client refusal to pay the Member’s fee.
- Awareness of an independent report on defects and remediation.
- Noticing unusual repair work on the building, suspecting design or construction defects.
- Receiving a letter from the client or their lawyer indicating the need for inspection or cooperation due to remediation requirements.
What kind of liabilites exist in our industry?
- Contractual Liability
- Tortious Liability –third party liabilities
- Joint and Several Liabilities
- Indemnities
- Warrantees
- Consumer Guarantees Act
- Fair trading Act
- Health and Safety in Employment Act
- Breaches of the Companies Act
- Breaches under the Architects Act
- Breaches of the Employment Relations Act
What is an Architects liability?
Under Contract
* Breach of contract
* Breach of duty of care owed under contract
Tort of Negligence
* Failure to exercise reasonable skill and care to a standard expected of a similarly qualified and experienced architect and
* Owed to a class of people whom the Architect ought reasonably contemplate could be affected by the advice or actions
What are the limiations of liability in time?
* Under Contract – an action must be brought within
* 6 years from the date of the breach
* 12 years from the date of the breach if signed under deed
- Under Tort
- 6 years from the date on which the cause of action accrued
- 6 years from when the negligent act / omission ought reasonably to have been
discovered. - Under the Building Act 2004 (s. 393)
- Civil proceedings relating to building work may not be brought after 10 years or
more from the date of the act or omission. - This is referred to as the 10 year long stop
What are the limitations of liabilities in Quantum?
Can only be limited by agreement (i.e. Under Contract)
Except that under the Consumer Guarantees Act no limitation can be
established
(Applies when one Party is a Consumer and the other is in Trade)
How does the AAS Limit the architects Liability in both Quantum and Time?
- Breach, Reasonably foreseeable, Caused by
- Proportionate Liability
- 6 years from DATE OF AGREEMENT
- Core Services concept
- Responsibility for changes
- Limitation for Third Party Claims
- Limitation in Quantum ($250,000)
- Professional Indemnity Insurance cover
Who are you responsible for/Owe a duty to?
- Your Clients – Under Contract
- Your Staff – Moral and Contract
- You and Your Family – Moral
- Your Community – Moral and Ethical
- Your Fellow Professionals - Ethical
What is insurance Run-off?
Run Off Coverage applies where a company ceases to trade, sells its assets or merges with another entity. The policy provides coverage specifically for any acts occurring prior to the date on which the company/entity ceased trading, sold its assets or merged.
What are the risks for Sole Trader in regards to liabilility exposure?
- Both the practice and the principal can be sued
- PI Insurance would cover both the defence costs and damages within the indemnity provided by the policy (Current NZACS policy)
- Defence costs could run to $100,000 or more
- If total claim exceeds the policy indemnity the Practice and the Principal are liable to fund the remainder
How do you manage risks as a Sole Practitioner?
- Regularly update adequacy of PI Insurance
- Ensure PI Policy covers both Principal and Practice
- Incorporate Practice as Limited Liability Company
- Form a relationship with another practice to provide continuity to clients in the event of death of disability
- Estate Planning
What are the liability risks for Partnerships?
- Each Partner is jointly and severally liable for the actions (or in-actions) of each of the other Partners
- After the assets of the Partnership are exhausted by a claim the Partners become personally liable for the outstanding amount to the extent of their own Private Fortunes
How do you manage risks in a Partnership?
- Adequate PI Insurance
- Incorporate Practice into a Limited Liability Company
- Succession Planning
- Estate Planning
What are the liability risks in an Incorperated Practice?
- Exposure to claims limited to the assets of the Company
- Individual Directors not liable for actions of other Directors
- Directors can be liable for breaches of duty under the Companies Act
- (Fines and Infringements)
- Directors (and staff) can be found liable for negligent work they undertake working in the Company
- A Director can be joined in an action and found liable for losses of Company Assets
WHat are the directors dutuies under in the Companies Act 1993?
S.131 Duty of Directors to Act in Good Faith and in the best interests of the Company
S.137 Duty of Care, act using Diligence and Skill
PRIMARY RESPONSIBILITY OF DIRECTORS (THE BOARD)
* Preparation of Financial Statements
* Establishing Goals and Strategic Plans
* Annual Budgets and Monitoring
* Managing Risk
* Working with Management to create Shareholder Value
How do you manage risks in an Incorperated Practice?
- Adequate PI Insurance
- Robust in-house procedures and standards
- Succession Planning
- Estate Planning
- Disaster Protection for the Company and its Shareholders
What is a retroative date?
This iis the date at which your cover starts in regards to insurance
What challenges might architects face when starting their own practice?
hallenges include periods of isolation, uncertainty, financial outlay, and the need for steady progress without a boss to turn to.
hat opportunities and risks come with starting an architectural practice?
Opportunities include special knowledge, expertise, and existing professional contacts. Risks involve slow progress, financial burden, and potential periods of isolation.
Why is a thorough examination of the market important before starting a practice?
Examining the market ensures reasonable hope of opportunities and provides confidence in your market potential.