Editor’s note: This piece from the SCOV Law Blog is by SCOV Law editor Andrew Delaney.
In re Bombardier, 2018 VT 11
Here’s another blast from the past. This case is about a professional engineer’s required standards of conduct when inspecting a home for an insurance claim.
Naturally, this reminds me of a humorous saying about engineers. The optimist sees the glass as half full. The pessimist sees the glass as half empty. The engineer sees the glass as twice as big as it needs to be. This has little to do with the case, but when have we ever let that get in the way of mildly related humor? That’s right: never.
In 2014, an insurance adjuster hired Gregory Bombardier—a licensed professional engineer—to take a look at Rand Larson’s property. Mr. Larson had filed a claim against a plumbing and heating company because he believed that when the plumbing and heating company notched one of the support beams in his house, it caused the floor to buckle.
Mr. Bombardier showed up when Mr. Larson was away. There was some remedial shoring work in progress and Mr. Larson’s contractor was at the property. The remedial shoring work is important in this case because it included sonotubes intended to support a skirt, but those sonotubes did not provide foundational support for the house itself. The house itself was mostly cantilevered construction.
Well, Mr. Bombardier assumed that the sonotubes were foundational elements. He looked at the notched beam through a hole in the floor from above. He didn’t see any cracking or splintering. He didn’t observe the notched beam from below. Based on his inspection, he concluded that the floor settling was due to the sonotubes settling and not from the notched beam.
Mr. Larson hired his own engineer. That engineer said the floor settling was due to the notched beam. Mr. Larson asked Mr. Bombardier for a reinspection. Mr. Bombardier didn’t respond. The insurance company sent Mr. Bombardier a copy of the other engineer’s report and Mr. Bombardier told the insurance company that nothing in it changed his opinion. The insurance company denied the claim.
Mr. Larson got ticked off. He wrote Mr. Bombardier an email “threatening to sue him and to file a professional complaint against him if he ‘continue[d] to fail to consider the irrefutable proof that we hold that totally refutes your conclusions!’” Mr. Larson then filed a professional complaint against respondent.
The Office of Professional Responsibility (OPR) brought charges of unprofessional conduct against Mr. Bombardier, asserting that Mr. Bombardier’s inspection was deficient and that — when faced with conflicting opinions from other knowledgeable tradespeople and professionals — Mr. Bombardier should have reviewed or revised his opinion.
The Board didn’t ding Mr. Bombardier for not reviewing or revising his report, but it did find that his inspection was unprofessional. He would have been OK if he’d only signed up to rule out the plumbing and heating contractor’s work as the cause of damage. Instead, he agreed to a much broader scope of work. The Board found Mr. Bombardier’s inspection deficient because he didn’t ask Mr. Larson about the house’s history; he didn’t ask the on-site contractor about the prior renovations and ongoing remedial work; he had limited observation of the framing; he drafted a minimally noted framing plan; he didn’t really check out the notched beam fully. There was a bunch more. “Yadda, yadda, yadda.”
So, the Board concluded that Mr. Bombardier “failed to conform to the essential standards of acceptable and prevailing practice” because he didn’t do a proper inspection. He was reprimanded and dinged with a $1,000 fine.
Mr. Bombardier appealed to an administrative officer, who did an on-the-record review and affirmed.
Mr. Bombardier appeals.
SCOV notes it “will affirm the Board’s findings as long as they are supported by substantial evidence, and its conclusions if rationally derived from the findings and based on a correct interpretation of the law.” SCOV also gives additional deference in this type of review-by-peers situation.
Mr. Bombardier first argues that the charges against him are unfair and against the purpose of the disciplinary rules because the complaint was initiated by Mr. Larson. He points out that his actual client was the insurance company. SCOV reasons that this matters not. It’s within OPR’s discretion whether to bring charges. “One does not need to be a client, or to suffer actual harm, in order to file a complaint against a license holder.”
SCOV notes that “whether a professional engineer has engaged in unprofessional conduct does not turn on whether a client is upset or has filed a complaint.” An engineer and client can limit the scope of work and that’s fine. Likewise, the fact that an aggrieved party can sue an engineer for damages doesn’t “obviate the engineer’s independent duty to avoid unprofessional conduct nor does it deprive the Board of its statutory authority to address such conduct.”
SCOV reasons that while the disciplinary rules shouldn’t be used to settle private disputes, that’s not what happened here. There’s no indication that Mr. Larson’s email influenced the Board. OPR investigated the complaint, concluded charges were warranted, and found five separate reasons—supported by multiple points—why Mr. Bombardier’s inspection and engineering work was deficient and fell below the acceptable standard. Because Mr. Bombardier didn’t directly challenge the Board’s findings, and the Board’s findings support its conclusions, we can see where SCOV is headed. And we don’t need a crystal ball. SCOV rejects Mr. Bombardier’s public policy arguments.
Mr. Bombardier next argues he was deprived of basic due process because OPR’s specification of charges wasn’t about his failure to do a thorough investigation or sufficiently document his investigation. He argues he would’ve introduced other evidence if he knew he was going to get dinged for these shortcomings.
SCOV finds no error. Notice in an administrative proceeding only needs to be reasonable. And here, SCOV reasons, the notice was reasonable. First off, there were specific allegations about Mr. Bombardier’s conduct during the inspection in the statement of facts for the specification of charges. SCOV reasons that Mr. Bombardier was given “sufficient factual background to put him on notice that he was alleged to have committed unprofessional conduct during his … inspection.” Additionally, there was a lot of discussion of the report during the hearing. There wasn’t any objection to a board member’s classification of the report as the “heart” of the matter. All in all, SCOV reasons that Mr. Bombardier was given “an adequate opportunity to prepare and respond to the issues raised in the proceeding.” SCOV rejects the due-process argument.
SCOV quickly disposes of Mr. Bombardier’s the-Board-misapprehended-my-undertaking’s-scope argument. SCOV points out that Mr. Bombardier repeatedly testified during the hearing that the scope of work he agreed to was broad.
Mr. Bombardier will have to take his reprimand and pay his fine. SCOV affirms.
