The Claims-Free Architect

How Ignoring The Neighbour's Runoff Resulted In A Paint Shop Flood

• Season 3 • Episode 13

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What sort of problems arise when Architects and Engineers are unfamiliar with the physical context of a building site? How can they work together to ensure that things such as site drainage are adequately dealt with?

When Architects fail to familiarize themselves with existing site conditions, they and their consultants may be designing in a bubble. In this case, the site grading drawings were fine, but failed to note that the site was at the foot of a hill. Flooding was inevitable.


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It’s common knowledge that water flows downhill. Even fish understand this rule, as they annually struggle upstream, in the hope of spawning a new generation. In architecture, the downhill flow of water forms the basis for the design of plumbing and drainage systems. It’s such a universal rule that it’s more than a little surprising when it’s been ignored. And yet, Pro-Demnity has faced numerous claims where architects have done just that.


This is one such story, which we ironically call: “WHEN WATER FLOWS UPHILL.”


Jonathan Snowbank, Architect, was hired by Elmore Swayle, a kitchen cabinet maker, to design an extension to his spray-painting shop in Toronto’s west end. It was a small project with few complications, involving little more than constructing a simple enclosure and making alterations to the existing parking area.


The site plan was straightforward: Establish parking lot levels at at least 15 cm. lower than the shop floor; slope the grade to catch basins; and provide a drainage system to carry the water away. To ensure that these details were properly handled, Snowbank engaged Civil Engineer Max Wasser to design a stormwater management system. Wasser marked up Snowbank’s site plan, indicating grade elevations, direction of flow, location of catch basins, etc., and affixed his stamp to the final plan. For this work, he was paid a fee of 1500 dollars. A site visit would involve additional fees, and seemed unnecessary.


By late spring, the renovations had been completed and Swayle had put his new paint shop into operation. The surface drainage of the new parking area, designed by Max Wasser and accepted by Johnathan Snowbank, appeared to provide adequate drainage for the seasonal rainfall conditions that prevailed throughout the summer. But a drainage system really proves its worth when it’s faced with a challenge—such as a sudden downpour. An effective system is designed to deal with heavy weather.


So, when the floor of Elmore Swayle’s paint shop became inundated with 15 cm of water, during a moderate - not extreme - rainstorm, Swayle needed an explanation. His work had been disrupted, cabinets had been destroyed and equipment had been ruined. Even if, or when, the damage was repaired, Swayle couldn’t operate his business with the uncertainty of having to watch weather reports every time he needed to use the spray-painting shop. He had paid his Architect and his Contractor for a dry building and expected to have it.


The Contractor swore that he had built everything according to drawings. Swayle agreed. Clearly, the Architect was at fault.

  

But Swayle wanted more than an explanation. Before the shop floor had even dried out, Swayle filed a claim against the Architect to cover the cost of redesign and reconstruction of the shop and parking areas, as well as providing compensation for his business losses. He was looking for 300,000 dollars.


On receiving the Notice of Claim, Snowbank met with Pro-Demnity, bringing along his drawings and his construction files for us to study. He told our Claims Specialist that he had visited the site shortly after the rainstorm and had seen the flooding firsthand. There was no question that the situation was serious, and it was obvious to him that the Engineer Wasser was responsible. After all, Snowbank had given him all the site information required to design a proper drainage system—with, presumably, sufficient capacity to deal with severe conditions. And yet, that system appeared to have failed . . . epically. We were inclined to agree with Snowbank, but we delayed judgment until we had heard the Engineer’s side of the story.


Over the phone, Max Wasser seemed needlessly defensive. He protested that he had designed for a 100-year flood, based on the information the Architect provided. And if the parking area flooded into the shop, it could only be because the Architect gave him the wrong levels. Water doesn’t flow uphill. So, either the Architect’s drawings were wrong, or the floor level was constructed lower than the drawings indicated. Either way, it wasn’t an engineering issue.


He also pointed out that the small sum of 1,500 dollars that he was paid for his services covered the cost of checking the Architect’s design, doing some calculations and affixing his stamp. There was never any discussion—or apparent need—for any further services, such as a site visit. But in any event, he was not about to work for free. As it happened, he was currently unemployed.


While the Engineer seemed content not to have visited the site, the Claims Specialist knew by experience that a physical examination of the scene can often provide clarity—and even explain anomalies such as the apparent uphill flow of water. And so, she drove out to the west end of the city to meet with Swayle and his counsel. She had decided beforehand to exclude the Architect from the meeting to avoid any inadvertent prejudice to the defence.


Immediately upon her arrival at the site, she made a staggering discovery—and one that highlighted another important facet of this case, not to mention, a hallmark of good architectural practice, in general.


Every building is created within an existing environment. This may or may not include an architectural context, but in any location, there exists a natural context—climate, geology and surrounding topography, for example—things that are never shown on a building site plan. A broader view is needed—an area plan, or possibly a mindful site visit. It was clear to the Claims Specialist that any visits the Architect had made to this site had been completely inattentive.


The Claims Specialist observed that, while the site itself was quite flat, just as shown on the drawings, the neighbouring property was not. Next to Swayle’s parking area, was a hill with a large manufacturing plant on top. With no other drainage below the hill, any surface water that overflowed the plant’s parking area—an amount that could be substantial—ended up in Swayle’s parking lot, which served as a natural retention basin and water reservoir.


The Engineer Wasser may have managed the storm water that might fall on the subject property, but he had not accounted for the frequent floods that would inevitably result from the runoff of the adjacent hillside, paved road, and parking areas.


The Architect had never once mentioned this adjacent hillside—it appeared in none of the documentation—and it was not noticed by the Engineer. The Claims Specialist asked herself two questions: Isn’t it expected that Engineers will acquaint themselves with all relevant conditions before they put their stamp on a drawing? And . . . to what extent are Architects obliged to evaluate the work of the consultants they have hired?


The Claims specialist could see that the matter needed to be remedied as soon as possible—certainly before the next storm—otherwise damages would escalate and our defence position, like the rainwater runoff, would descend rapidly downhill. The Engineer Wasser declined to cooperate, and his insurer offered no assistance. So, we decided to work with the plaintiff. We agreed to claim jointly against the Engineer, once the necessary repairs had been made, and the costs were known.


To design us out of this mess, Swayle and Pro-Demnity engaged a well-known civil engineering firm. Their solution consisted of a system of gullies, enlarged drains and gratings, capable of handling a lot of surface water. The work was tendered and completed, and paid for by Swayle and Pro-Demnity, equally. We now turned our attention toward the Engineer.


With Swayle and Pro-Demnity as co-plaintiffs, a Statement of Claim was served, naming Max Wasser as defendant. The demand was for the full cost of the work plus professional fees and business losses for Swayle. At the same time, we offered to mediate, in order to avoid the time and expense of further legal action.


The mediation before Mr. Justice Bayglass was brief, lasting only a few hours.


It began with a statement from the plaintiffs. Swayle’s counsel put our case quite well. He presented proof of loss for the remedial work and professional fees, and had also calculated a large sum to represent the losses in Swayle’s operations. Pro-Demnity counsel, on behalf of the Architect, pointed out the obvious fact that the only purpose for engaging a civil engineer to do stormwater management was to have storm water properly managed. Fifteen centimetres of water inside a building several times a year is not good management. The architect had expected Mr. Wasser to look at the big picture in his design, and not just check that the parking lot slopes and elevations and drain sizes were sufficient to handle local problems.


Wasser presented three counter-arguments. First, as a matter of professional pride, he produced pages of calculations which, he claimed, proved that the plaintiffs’ experts were wrong. But, since these experts were not in attendance, his lengthy explanations fell on uncomprehending ears. Second, his management scheme was based solely on grades and other information provided by the Architect. His task had been merely to make suggestions regarding the drainage system, and nothing else. Third, his modest fee clearly didn’t include the design of a neighborhood drainage system—an assertion that was borne out by the fact that our bill from the subsequent engineers was ten times larger than his fee.


There were easy rebuttals to these arguments, but we found it unnecessary to make them. Wasser’s legal counsel, appointed by his insurer, had seen the writing on the wall and wanted to talk.


We settled quickly. Swayle dropped his claim for business losses and agreed that the new design involved a much more sophisticated and expensive system, in other words, a “betterment,” for which he was willing to pay. Wasser’s insurer agreed to pay for a large part of the remedial and professional costs, as an economic settlement, with no liability admitted.


We recognize  that the Architect hadn’t properly fulfilled his role in briefing the Engineer and co-ordinating his work. Snowbank should have been familiar with the site and should have accounted for its vulnerable location. Furthermore, since he was the one who engaged Wasser, he was contractually liable for the engineer’s errors. We contributed to the settlement accordingly.



In addition to confirming the physical laws governing the flow of water, this story offers a torrent of valuable lessons.


Lesson No. 1: Consider the site and neighbourhood context. Buildings don’t exist in a vacuum. 


Lesson No. 2: In practice, Architects are often required to design large parking areas, and drainage provisions may fall within “the usual or customary services of an architect.” But the design of the more sophisticated storm water management systems, required by municipal authorities, is properly the work of civil engineers and as such, is excluded from coverage under Pro-Demnity’s policy.


Lesson No. 3: Any off-site analysis and design of storm water systems—including assessment of upstream and downstream effects of construction in flood zones, flood retention basins, etc.—is not covered by the Pro-Demnity policy. Where such services are required, the Owner should engage the Civil Engineer directly and not through the Architect as prime, if at all possible.


Lesson No.4: Paying low fees to Engineers may appear to be smart business practice, but as in all things, “you get what you pay for.” Wasser was not a bad engineer, just a struggling, young practitioner with little experience in negotiating scope of services and fees. Paying for a site visit would have been a smart investment.


Lesson No. 5: Settlement through mediation, just like architectural practice, relies on collaborative effort, with various viewpoints, entertained and evaluated fairly. In insurance claims, such camaraderie cannot always be counted on. Sometimes litigants are unsavory characters, and their lawyers represent them in the same manner. When it’s clear to us that an Architect is entirely blameless, we often decline the invitation to participate. 


Lesson No. 6: As a postscript, both the Architect and the Engineer chose to keep their professional liability insurance premiums lower by selecting higher deductible amounts that turned out to be more than they could afford out of pocket. But, they were obliged to pay. Don’t let this happen to you. If you had a claim today, would you be able to comfortably pay the deductible you have chosen? Always take time to review your claim limits and deductible prior to your next insurance renewal.