Traversing the Law
August 2007

I’m writing this letter to the readers, as well as the editors, of POB. In my August column I wrote an article about a California appellate court case, Knerr v. Mauldin. The column has received considerable attention and I need to correct at least one omission on my part. The case is an unpublished California Appellate Court decision. At the very least I should have included this fact in footnotes. I have to admit at the time I wrote the article and submitted it to POB for publication I did not have a full understanding of the significance or insignificance of the status of “unpublished.” My thought was that I had found advance sheets of the case that would be “certified” and “published” once final editing had been accomplished. This does not appear to be the case.

From my subsequent research into the issue of “unpublished” cases, this appears to be a situation unique to California, a few other states and certain federal jurisdictions. It’s a practice that has drawn considerable criticism in the legal community, and in at least one federal case, has been struck down as unconstitutional. Nevertheless, in California, all Supreme Court cases are “published” but only certain appellate court cases are “certified” by the Supreme Court and later “published.”

Quoting from pertinent California law, Rule 976 of the Court Rules, “No opinion of a Court of Appeal or an appellate department of the superior court may be published in the Official Reports unless the opinion: (1) establishes a new rule of law, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule; (2) resolves or creates an apparent conflict in the law; (3) involves a legal issue of continuing public interest; or (4) makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law.”

Apparently, the California Supreme Court does not believe the case accomplishes any of the above. This doesn’t mean that the case will not be certified at some later date and published, which is what I originally thought was the situation, but that now seems unlikely. So what does this mean? Not much really. It doesn’t change the facts or the outcome of the case. It was appealed from the Appellate to the Supreme Court, which refused to review the case, meaning the Supreme Court, if not satisfied, saw nothing that deserved its attention. It means that no “new rule or law” has been established in the case. The rule of law already established in the previous California case, cited in both the opinion and my article, State of California v. Thompson, is still the law of the land, as least as far as California is concerned. It does mean that the case cannot be cited as legal authority in a court proceeding in California, because it establishes no new law.

The remainder of the cases cited in the article are all established law within their jurisdictional boundaries and can be applied generally. I apologize to the readership and to the editors of POB for any misconception this may have caused. In any event, I stand behind the article and the principles articulated by the court in the case.

Jeff Lucas

Technology Benchmark
June 2007

I found the activity among state boards that you describe to be extremely disturbing. I work for a contractor in the Southeast who is a regional leader in the adoption and implementation of 3D technology. We have helped to pioneer the practical utilization of 3D models and GPS-guided machines. I have [more than] 13 years of experience in mining and construction engineering and surveying, but I am not a licensed engineer or surveyor. The requirements of working under the supervision of a licensed individual and focus on boundary issues make it impractical and unreasonable for people like me to obtain a license.

I have, in fact, just recently hired a licensed surveyor to work under my supervision as I train him to have the skills and comprehension required to build accurate, practical models and to utilize GPS technology in civil construction. We hired him as the result of a three-year search for a qualified licensed surveyor. During our search we did not find any licensed surveyors with the qualifications to provide both traditional survey abilities implicit in licensure, and the ability and experience to support GPS equipment in civil construction. In the end, we hired someone who was eager to learn and apply the new technology. The point I am making is that licensure does not necessitate the ability to build or supervise the building of 3D models. I agree that licensed surveyors are valuable in many situations, but this is not one of them.

As you state in the article, the root cause of the change is “money and lost opportunity for the surveying community.” From my perspective, the “lost opportunity” occurred five to seven years ago when GPS technology first started gaining significant acceptance by large to medium civil construction firms. The licensed survey/engineering community (as a whole) did not embrace the new technology and left it up to contractors to figure out how to make it work. Now that the technology has become an integral part of our businesses, surveyors/engineers have finally taken note simply because they are losing money. State licensing boards are being asked to help survey/engineering firms force their way into a market they previously ignored.

Requiring a licensed surveyor/engineer to build 3D models does not necessarily provide better protection of public safety. Of the approximately 20 “issued for construction” plan sets I currently have in my office, I cannot find one that does not have serious errors that were caught by an unlicensed “construction modeler.” All of these plans carry the seal of licensed engineers and cover projects in four states.

As for liability and accountability, almost all contracts have a disclaimer stating something to the effect of “drawings may not be complete in every detail” but “any errors, conflicts or discrepancies in this plan shall be reported to the engineer for resolution before proceeding.” As such, the engineer is shifting accountability and liability to the contractor who must have the ability and comprehension to recognize errors. I therefore cannot agree with the assertion that “if a licensed individual were involved, he or she may have caught those errors or at least have been held responsible to catch those errors.”

The article describes a scenario in which the contractor turns the licensed surveyor/engineer into the state board for issuing an “insufficient set of design data.” Number one, it is not generally in a contractor’s best business interest to develop adversarial relationships with surveying/engineering firms. We rely on good relationships to help us work through problems that are part of any civil job. Number two, it is rare for a set of construction plans to be complete with respect to creating a practical 3D surface. These are plans created and sealed by licensed professionals, but often the grading plans are not internally consistent and/or do not match details. Many of these problems become evident during the close analysis required to build a viable 3D model.

Contractors I know expect and accept some of these mistakes as part of doing business. In practice some of these problems are remedied by “field fitting” as they were before the advent of GPS. ”Field fitting” requires the contractor to use his best judgment to implement the engineer’s intent rather than what the engineer depicted on the plan. Discrepancies of greater complexity require the contractor to inform the engineer who resolves the conflict. Again, the contractor is forced to assume a certain amount of accountability and liability in implementing the design. A 3D model is a virtual representation of what the contractor has been contracted to build in real space. Equipment operators and their supervisors are not required to have an engineering or survey license to build in real space, [so] why should it be required in virtual space?

This debate disregards the fact that contractors are required to be licensed in each state where they work, and can therefore be held accountable and liable in much the same way [that] surveyors and engineers are. If a private contractor takes on the liability of building a 3D model, it is in his best business interest to build the model correctly. A contractor who cannot build reliable 3D models will go out of business, stop using GPS or hire a consultant.

Nonetheless, GPS utilization continues to expand rapidly and there is a chronic paucity of qualified individuals to support the technology. There still is a terrific opportunity for survey/engineering firms to take advantage of their specialized skills and develop the abilities to support 3D modeling and GPS technology without hiding behind licensure.

Langdon Mitchell
South Carolina

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