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STATUTE OF
LIMITATIONS—A LIABILITY CRISIS::
Note: A revision of the
statute of limitations must be made for architects and professional
engineers due to a recent Michigan Supreme Court decision. Generally
speaking, Republicans will be more favorably disposed toward this issue
than will Democrats.
*On February 1, 2006 the Michigan Supreme
Court issued an opinion in the case of Ostroth v Warren Regency GP, LLC,
docket number 126859, which greatly expanded the statute of limitations
period for professional malpractice actions against architects,
professional engineers, professional land surveyors and contractors from
two to six years.
*In its opinion the Court overturned a
Michigan Court of Appeals decision that was over ten years old that
construed this statute of limitations.
*This threefold and sudden increase in
liability exposure places architects and professional engineers at much
greater risk than any other professional such as a doctor or lawyer.
*The Court’s decision in Ostroth threatens
Michigan’s construction industry because the cost of liability insurance
will vastly increase.
*For the sake of fairness and keeping
jobs in Michigan, we need your
support for remedial legislation which will balance the redress of
plaintiffs with the need to keep and grow jobs in Michigan. We urge your
support for statute of limitations reform.
PROPER
ENFORCEMENT OF LICENSING LAWS; INCREASED PENALTIES:
Note: The following proposal will generally
receive support from legislators of both political parties.
*The design professions are licensed to
protect the health and safety of the public. Unlicensed activity not only
threatens the livelihood of the legitimate design professional, but it
also threatens public safety.
*The design professions urge your support
for a bill that will increase the penalties for those who practice the
professions without a license or do so incompetently. In addition, this
two bill package will make it a crime to practice without a license, one
of the occupations or professions regulated by the Occupational Code.
These bills will be introduced by Rep. Chris Ward.
*In the interim, the design professions urge
your office to encourage the Department of Labor and Economic Growth,
Bureau of Commercial Services to enforce the laws against both unlicensed
and incompetent practice.
TORT REFORM; CERTIFICATE OF
MERIT LEGISLATION:
Note: This proposal will generally receive
more support from Republican members.
*Like many professionals, architects and
professional engineers are called to defend themselves against third party
damage claims and claims by owners. While some of these actions may have
merit, many, many do not. We are a litigious society and the design
professions have not been spared.
*The number of these lawsuits not only
increases the cost of doing business in this state, but also, increases
the cost of government.
*Legislation which requires a plaintiff to
either swear to the authenticity of his/her complaint, requires him/her to
obtain a positive opinion from an expert witness as to the merits of the
claim prior to filing it with a court, or requires a panel of experts to
arbitrate the matter prior to filing the claim with a court, would reduce
the number of lawsuits clogging court dockets and would tend to separate
the claims that had merit from those that were not meritorious.
*This or similar legislation is called
“Certificate of Merit” Legislation and has been passed in various forms in
a number of states. Rep. John Pastor will sponsor the legislation.
PRESERVING PUBLIC SAFETY—DON’T LICENSE PEOPLE
TO PRACTICE INDOOR ARCHITECTURE OR PROFESSIONAL ENGINEERING:
Note:
This
section specifically addresses legislation to license or register
‘interior designers.” In the past, the position of the Associations has
been supported by lawmakers of both political parties. In fact, both
Democratic and Republican Administrations have opposed the legislation.
However, HB 4311 is part of a three bill package, one of which is
sponsored by a Republican and two of which are sponsored by a Democrat.
These bills passed the House in February and are now before the Senate
Committee on Economic Development, Small Business and Regulatory Reform.
There is bipartisan support for and opposition to these bills.
*For years, people who call themselves
interior designers have sought to have building officials accept their
plans and documents for interiors of buildings without an architect’s or
professional engineer’s seal. Many building officials will not accept the
plans of interior designers without such a seal.
*Interior designers often work with
architects and professional engineers with regard to furniture and
fabrics.
*In order to have their plans approved by
building officials, interior designers believe they need to be licensed or
registered by the state.
*Interior designers are not however,
qualified by either education or experience to prepare documents which
could have an impact upon a building’s mechanical, electrical, structural,
or life safety systems. Furthermore, architects and professional
engineers are the only professionals who have the training and skill to
wholly integrate a project. Interior designers when used on a project are
only one part of that integrated whole. That integrated whole is overseen
and coordinated by a licensed professional, an architect or professional
engineer.
*If interior designers were licensed or
registered then there would be every justification for licensing others
who contribute to the whole project. i.e. upholsterers, people trained in
acoustics, etc.
*Believing that they needed full licensure
or registration in order to have their plans accepted by building
officials, interior designers had House Bills 4262, 4311 and 4312
introduced and they are now in the Senate. House Bills 4311 would provide
for the registration of interior designers with a defined scope of
practice.
*House Bill 4311 would add another layer of
government by creating yet another regulatory board which would license
and discipline interior designers. There is not enough money in the
budget to enforce the licensing laws we have now, let alone add another.
That is why even the Department of Labor and Economic Growth, the
Department that would be charged with licensing and regulating interior
designers, is opposed to this legislation and believes as do the
architects and professional engineers, that the best solution to the
concerns of interior designers lies in an amendment to the Construction
Code so their plans could be accepted by building officials.
*House Bill 4311 would require the building
officials of this state to make legal conclusions as to whether an
interior designer’s plans “materially affected”
a building’s mechanical, electrical,
structural, or life safety systems. That is why the building officials of
this state have traditionally been opposed to this legislation.
REBUILDING MICHIGAN’S ROADS, BRIDGES AND
INFRASTRUCTURE THROUGH ADEQUATE FUNDING:
Note: Last year, the
Legislature approved a $1 billion plan which proves funding for needed
infrastructure improvement projects and places an emphasis on the design
and construction of “high tech” facilities with an emphasis on the life
sciences. In addition, laws were enacted to make it easier for
municipalities to obtain application grant permits for wastewater
projects. The Associations wholeheartedly endorse these efforts and thank
the legislature for them. However, we urge continued support to make sure
need funds get to projects such as:
Needed repairs of roads and bridges;
Combined sewer overflow and storm water
separation;
Conversion of brownfield sites into sites
of economic development;
Construction and repair of affordable
housing for families and seniors; and,
Modernizing schools and fixing
deteriorating buildings on college campuses.
KEEP A GOOD THING GOING, DON’T LET
REMONUMENTATION DIE:
Note: Last year, the
Administration and the Legislature agreed to legislation that would
withdraw $15 million for the Remonumentation Fund and deposit it in the
general fund in order to balance the state’s budget. This was a
bipartisan leadership agreement and therefore it will probably be
enacted. Nevertheless, for those desirous of addressing this issue, I
suggest the following:
*The Remonumentation Fund was created by
separate legislation in the early 1990’s and was dedicated to upgrading
the surveying work done in this state.
*The Fund derives its revenue from deed
registration fees (partial) and is self sustaining.
*The money is used for needed surveying
work, some areas of the state not being surveyed for more than one hundred
years.
*This surveying is essential for the
placement of infrastructure such as sewers, telephone lines and cable, and
911 response systems. We don’t know where we are going until we know
where we are and remonumentation does just that.
*This system of remonumentation has been
successful and it is truly unfortunate that the Fund will be raided if SB
959 is enacted. We urge you not to support SB 959. However, if it is
enacted, we urge you to insist upon replacement of the $15 million in this
fiscal year.
HELPING TO MAKE SURE THINGS ARE DONE
RIGHT—PICKING A DESIGN PROFESSIONAL ON THE BASIS OF QUALIFICATIONS NOT
PRICE:
Note: One of the goals
of the Associations is to have this state pick its design professionals
based upon their qualifications not low bid. While the state does take a
person or firm’s qualifications to perform the work under consideration,
price is the last determining factor. Republicans and Democrats generally
have been supportive of a qualifications based selection (QBS) approach,
but you may have to convince Republicans that such a system of selection,
rather than low bid, saves money in the long run.
*Architects and professional engineers are
indeed professionals, having unique qualifications to perform specific
types of work.
*We support the QBS system of procuring
design professional services because having the most qualified person or
firm work on the project increases the odds of it being performed
correctly.
*The QBS system would require the state to
first determine who the three most qualified firms or individuals are to
perform the work. Those people or firms would then negotiate price with
the state. If the negotiation failed among all three people or firms, the
state would then pick the next three most qualified people or firms to
perform the work and negotiate price with them.
*The system effective works for
transportation projects involving federal funds and is mandated by the
federal Brooks Act.
IMPROVING THE TAX CLIMATE, REGULATORY AND
HEALTH CARE COSTS IN MICHIGAN WILL LEAD TO FULLER EMPLOYMENT:
Note: Last year, Governor Granholm and the
Legislature agreed to reform in the Michigan Single Business Tax (SBT) for
most businesses. We applaud the bipartisan effort toward tax fairness for
all of Michigan’s businesses.
*The Associations encourage the Legislature
and the Administration to continue to work toward business tax relief that
will positively impact all businesses.
*We encourage support for streamlining
environmental permitting costs and waiting time through such measures as
paying an expedited fee to cut down the time it takes for the Department
of Environmental Quality to review a permit application.
*We encourage continued exploration of ideas
in the tax laws for stabilizing health care costs in this state. Health
care can only be made available by employers if it is affordable.
I hope this has been helpful. If you should
have any comments or questions regarding these or other topics, please do
not hesitate to contact me.
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