NYSSPE Mid-Year Legislative Update

By:Mark Kriss Esq., Legislative Counsel

The Society's leadership and I want to again thank all NYSSPE members who have helped advance our legislative and regulatory objectives. I am pleased to report that the Society was broadly successful in our efforts to defeat legislation adverse to the interest of the profession. Following are key issues which required an investment of our time and energy. While passage of NYSSPE's affirmative legislative agenda, including our effort to secure enactment of a Statute of Repose, remains elusive, some progress as detailed below has been made.

1. Indemnification - Support
S6059 / A7610 - (Senator Kennedy / Assemblyman Zebrowski)

This legislation, which was previously vetoed by former Governor Andrew Cuomo, addresses the issue of design professional contractual indemnification respecting public sector projects (state and local) and is strongly supported by NYSSPE. The legislation addresses public sector contracts wherein municipalities, state agencies and other governmental entities have inordinate leverage over the terms of indemnification. Presently, governmental entities can and do unfairly shift the burden to professional engineers and consulting firms for the cost of future contingent events such as personal injury, property damage and attendant attorneys' fees.

Broad form defense and indemnification provisions subject design professionals to liability arising out of the circumstances that are well beyond the design professional's scope of work and for matters over which the design professional has no control. Design professionals in many instances are unable to secure insurance to cover the scope of claims these provisions can generate. Many of the most highly qualified engineering firms simply refuse to participate in RFQs when confronted with adhesion contracts of this nature. As a result both public owners and taxpayers are deprived of the opportunity to benefit from their participation.

This bill addresses indemnification inequity by voiding contractual provisions requiring defense and indemnification involving a public work to the extent that a design professional is required to defend and indemnify a municipality, state agency, and other governmental entity or other parties for damages that are not the result of the negligence, recklessness, or willful misconduct of the design professional. Responsibility for losses related to the actions or failures of other parties that are unrelated to the design professional services rightfully rest with the at-fault party or parties. Design professions simply should not be compelled to provide indemnification for such conduct.

This legislation continues to face opposition from the general contractor community and efforts are underway to address these concerns. NYSSPE has been most vocal in proposing a compromise placing a cap on designer liability based on the proportional share design services represent in relation to a project as a whole.

1. QBS - Support
   S 8122A / A9575A - (Senator Comrie / Assemblymember Hyndman)

This legislation requires the use of Qualifications Based Selection by Public Authorities and Public Benefit Corporations, in addition to state agencies. Expanded utilization of QBS has been a long sought-after goal of NYSSPE. In fact, due in substantial part to the Society's efforts, similar legislation has previously passed the Assembly. QBS assures that price is not the sole criteria in the selection of professional engineering services by affording due consideration to the respective qualifications of consulting firms participating in the procurement process. The cost for design services is a small fraction of overall project costs. Getting the design right can significantly influence the overall cost of construction as well as ongoing life cycle costs. Simply put it is penny wise and pound foolish to employ a low bid methodology in the procurement of design services.

1. Statute of Repose - Support
   S8213/ A4549- ( Senator Cooney / Assemblyman Pretlow)

This legislation creates a 10-year Statute of Repose requiring that actions for personal injury, wrongful death or property damage against a design professional be commenced not more than 10 years after a project is completed. All states in the US have true Statutes of Repose with the exception of NY and VT. I am pleased to report the bill was advanced in the Senate out of the Judiciary Committee to the Senate floor for the first time. Nevertheless, the Plaintiffs' trial bar has frustrated our efforts to advance the bill across the finish line.

In order to improve the prospect for passage of this measure the Society has urged that a Statute of Repose provision be incorporated into any bill to expand damages in wrongful death cases. Earlier this year Governor Hochul vetoed stand alone legislation to expand damages in wrongful death cases. (See S6636/A6698 2023 veto memo # 151.)

NYSSPE, along with the business community (as well as the medical community including the association of hospitals), have urged that the 2024 wrongful death bill (A9232B/ S8485B) be vetoed yet again due to the impact of the proposal upon the economic well-being of key segments of the State's economy. While the 2024 version of the legislation reduced the scope of the bill to some degree, by limiting recovery to traditional family members and shortening a look-back period, the bill is still projected to be extremely expensive. While New York is admittedly out of step with the balance of the country, insofar as more than 40 states permit family members to recover for emotional losses in wrongful death cases, at the same time 48 states have adopted true Statutes of Repose to protect design professionals from liabilities for claims long after a building, or other improvement, has withstood the test of time having performed as intended. Balance must be a cornerstone for sound civil justice reform to proceed.

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