California Surveyors Forums

I worked for a surveyor that didn't carry E&O because

I believe the "deep pockets" of an insurance policy is, indeed, a litigation magnet, and for the first 9 years in business I was able to operate without it. However, as more and more of my clients required that I carry E&O, I capitulated and signed up for it in 2002. I've kept it current ever since out of client necessity, but I sure hate writing those checks!

".........and most times the insurance company won't fight it if they can settle for less."

Well, that's only if I allow that to happen. The insurance company has to get my okay to settle the case. Part of my purchase price of the e n o is that I am paying them for a "defense". I am paying them to defend me against claims, not just roll over and have them pay the bill if they see fit.

Or maybe I am mising something. Wouldn't be the first time.

The insurance company has to get my okay to settle the case.

Generally, but beware the hammer clause, which allows the insurer to limit its liability to the amount for which it could have settled the claim had consent been provided. Capriciously withholding consent to settle can turn out to be very expensive.

Insurance cos do what they want.
My wife was backing our pickup out of a parking space at the same time a woman was backing her VW bug out of a space on the opposite side of the aisle, they met in the middle.
My truck suffered a little chipped paint on the steel bumper, the VW suffered a bent bumper sissy bar and busted taillight.
Without our consent my Ins co paid for the VWs damage. I was livid when I found out. Neither driver was more at fault than the other, I never got a answer as to why they paid. I did demand and got a letter stating it was a no fault claim they paid and carefully watched my rates.

Jim Frame wrote:Generally, but beware the hammer clause, which allows the insurer to limit its liability to the amount for which it could have settled the claim had consent been provided. Capriciously withholding consent to settle can turn out to be very expensive.

I have heard of that and I am sure it's somewhere in the electron microscope sized print.

I had requests to carry E&O but no guarantee of getting the work so I have never had E&O and in 20+ years never needed it. My biggest legal issue was taking dead beats to small claims court of which I am 4 and 0. Two of which settled the night before or morning of the court date. Have no clue as to why they waited till the last minute to pay, who would go to all the trouble of filing and not show up.

"Withholding consent to settle can turn out to be very expensive", whether it is capricious or not.

Love this forum. Helps my vocabulary, ;)

Jeff Lucas in several POB mag articles covers slander of title. See the Sept. 2007 and several later editions. I doubt the magazine or Jeff will mind if proper credits are given. Jeff says among other things:

"What all of this means is that a surveyor, a surveyor’s actions, or the results of a survey (i.e., monuments set, lines cut, maps produced, etc.) can be the basis for a slander of title action if the surveyor, the surveyor’s actions or the survey results are false (or bogus) as to the true location of the boundary line, and if the affected landowner suffers a “pecuniary loss.â€￾ The gravamen is the material part of the grievance, complaint, charge or cause of action. As the California Court stated, the “gravamen of the tort is the damage to the salability of the property.â€￾ There doesn’t have to be an actual sale of the property or a purchaser standing by ready to purchase. The ability to sell the property or the property’s fitness to be sold must be impaired in some way." End of quote.

Another pathway to commit slander (actually a misnomer, since slander is verbal and injuring via the written word is libel) is the slippery slope practice of acting as an advocate for the owner. In court, I have gotten the sense that the judge respects the clearly neutral surveyor's opinion more than the surveyor who, like the owner's lawyer, takes on the role of advocate.

I have seen surveyors actually revise their prior RS and submit one that more favorably serves the interests of the owner and owner's lawyer.
In other words, the surveyor is willfully accepting direction by the owner and lawyer. See section 8703 for responsible charge. Should the lawyer and owner be in charge of the findings on the RS ? Seems like a violation.

I have seen the rare and unprofessional practice on recorded maps to identify by name, demean, and incredibly, bash the surveyor who filed the other map with the opposing boundary determination. Seems like a clear violation of Board Rule 476(c)(10) "A licensee shall not falsely or maliciously injure or attempt to injure the reputation or business of others."

yes.

Also, I have been told by attorney friends that is what I could do if a surveyor does not accept the monuments marking the corners of my property.

Going back to what Anthony posted regarding the definition of Slander of Title:

The State of California has adopted the definition of slander of title set forth in section 624 of the Restatement of Torts reading as follows: "One who, without a privilege to do so, publishes matter which is untrue and disparaging to another's property in land, chattels or intangible things under such circumstances as would lead a reasonable man to foresee that the conduct of a third person as purchaser or lessee thereof might be determined thereby is liable for pecuniary loss resulting to the other from the impairment of vendibility thus caused."

Doesn't the fact that we as surveyors are required by law to file a map when there is a material discrepancy or alternate location of a point or line (8762(b)2 & 8762(b)3) make us a priviledged party to do so and thus negating any part of the definition which would make us liable?

We are also under contract with the property owners to provide a service which would include a record of survey filed with a public agency, again, we are a priviledged party.

bryanmundia wrote:Doesn't the fact that we as surveyors are required by law to file a map when there is a material discrepancy or alternate location of a point or line (8762(b)2 & 8762(b)3) make us a priviledged party to do so and thus negating any part of the definition which would make us liable?

No. We are not privileged to publish something which even a reasonable non-surveyor would or should recognize as being untrue. That is at the heart of slander - that the published info or opinion is untrue and that the person putting it forth should have reasonably known it to be untrue.

As licensed surveyors, we are expected to be the experts when it comes to land boundaries and so are held to a higher standard by everyone but surveyors who seem to be under the impression that we were required to trade in our reasonableness as part of the cost of being given a license.

If we have done our job properly, whether the lines we have identified as the boundary would end up being recognized by a court of competent jurisdiction as being the true boundary, that line, or any identified alternate solutions should not be so wrong as to be obviously wrong to a reasonable non-surveyor.

If there is sufficient ambiguity in the description and/or in the other evidence of the boundary such that other competent boundary surveyors would agree that your solution was reasonable, then you have a good defense against charges of slander of title.

Although a surveyor runs a risk of being sued for slander of title anytime he identifies boundary lines in locations other than where one of the affected landowners expected or wanted to see them, he unnecessarily increases that risk when he identifies boundary locations without giving due consideration to all of the available evidence.

Those who approach boundaries as if they are nothing more than geometric figures to be calculated and then staked and ignore evidence of previous establishments of the boundaries on the ground, whether that be in the form of monuments, improvements, or lines of occupation are doing only a portion of the job. If they face charges of slander of title and the only other experts are also just math techs, then they stand a pretty good chance of getting away with their half survey.

But if the expert for the other side is able to articulate the full job, explaining the investigative aspect of boundary surveying, the basis for boundary principles that underlie full proper procedure, and can identify pertinent evidence which the defendant surveyor failed to consider, that defendant surveyor is going to have some problems.

marchenko wrote:yes.

Also, I have been told by attorney friends that is what I could do if a surveyor does not accept the monuments marking the corners of my property.

March, sounds like you set or accepted corners on your own property.
We all need to be leery of lawyers; they have to make a living so are always itching for battle. A few years ago one who was trying to recruit a surveyor for a case, phoned me and said "don't worry, this will be fun".

Does this sound like an example of slander of title regarding gaps and overlaps: a surveyor or engineer records a map wherein he/she states the owner in the junior subdivision (his/her client) has superior rights over the owner in the senior subdivision. Honest, in a recorded map.

Thanks for all of the information Evan. However, here is the definition of privileged:

privileged[ priv-uh-lijd, priv-lijd ]
adjective
1. belonging to a class that enjoys special privileges; favored: the privileged few.
2. entitled to or exercising a privilege.
3. restricted to a select group or individual: privileged information; a privileged position.

Item 3 I think pertains to us as surveyors by the law regarding filing and contracts with clients.

I am sure Evan will think otherwise. I await and look forward to the response. (Stated without Sarcasm)

bryanmundia wrote:Going back to what Anthony posted regarding the definition of Slander of Title:

The State of California has adopted the definition of slander of title set forth in section 624 of the Restatement of Torts reading as follows: "One who, without a privilege to do so, publishes matter which is untrue and disparaging to another's property in land, chattels or intangible things under such circumstances as would lead a reasonable man to foresee that the conduct of a third person as purchaser or lessee thereof might be determined thereby is liable for pecuniary loss resulting to the other from the impairment of vendibility thus caused."

Doesn't the fact that we as surveyors are required by law to file a map when there is a material discrepancy or alternate location of a point or line (8762(b)2 & 8762(b)3) make us a priviledged party to do so and thus negating any part of the definition which would make us liable?

We are also under contract with the property owners to provide a service which would include a record of survey filed with a public agency, again, we are a priviledged party.

Short & simple. No one, not even surveyors are privileged to tell an untruth about someone else or their property when we know or should no that the statement is untrue.

If you think a surveyor's license affords us the privilege to lie about land, think again.

E_Page wrote:Short & simple. No one, not even surveyors are privileged to tell an untruth about someone else or their property when we know or should no that the statement is untrue.

If you think a surveyor's license affords us the privilege to lie about land, think again.

So would an ROS qualify as a document that (even by definition being one man's opinion) would at least qualify as something that passes a "smell test" to avoid a slander accusation? I find it hard to believe the courts would view a County Surveyor letting something file that enters into that category.

According to the section 624 referenced in the earlier thread, it seems that there exists people who have the priviledge to publish a matter which is untrue.

I think that section should be revised.

Read the original question please which was "Can you be sued for slander of title from filing a record of survey". Never said anything about filing something that is untrue regarding a boundary or someone's property.

Your survey is your opinion based on your experience, knowledge and principles of practice right? Who is to say your opinion is correct?

I don't think that our license provides us anything really. I know plenty of unlicensed party chiefs and techs who can run circles around a pre-82 RCE who is "practicing" land surveying.

I think of a license as an honor that we will hold our values true and protect the public above all else as that is our main duty. Of course, your license does give you rights under the law that unlicensed individuals cannot take advantage of and that is not what I am talking about.

E_Page wrote:Short & simple. No one, not even surveyors are privileged to tell an untruth about someone else or their property when we know or should no that the statement is untrue.

If you think a surveyor's license affords us the privilege to lie about land, think again.

Again, the surveyor can't use "it's just my opinion" as a shield. The surveyor's opinion must be based upon sound boundary principles and to be defensible against Slander of Title, must not reflect a boundary that obviously never was and cannot be the boundary.

In the Zen Temple case I mentioned several posts back, Steve established a set of lines that fit the proper mathematical procedure for a section breakdown of a previously undivided section. His math was right on, he found all of the section corners and quarter corners he needed to perform such a breakdown. He labeled the disputed area (area between the previously established boundary and the line per his very well executed section breakdown) as an "Area of Conflict". And although the math followed the procedure outlined by the GLO/BLM as the intended method to divide a section and establish the lines identified in the deeds of the parent parcels of the first PMs in the vicinity, he established lines that never were the boundary and that could never be the boundary under the circumstances.

Steven was a competent professional surveyor and this was "just his opinion". But he totally blew it on this one and his opinion had the effect of placing a cloud on the adjoiner's title, thereby causing them some significant problems.

He ignored the obvious implications of the several parcel maps and records of surveys of the immediate vicinity. He declined to follow the advice of several surveyors that the existing established lines on the ground should be accepted. He was excoriated by the court.

Our license does not give us carte blanche to monument and map any set of points and lines under the guise of it being a professional opinion that doesn't really affect property rights.

Many surveyors seem to want to hide behind the "just my opinion" defense when it comes to the possibility of liability associated with identifying incorrect boundaries. That only goes so far.

If it's "just an opinion" with no reasonable expectation of correctness* attached to it, then why should surveyors be licensed. Any schmoe can have an opinion. Most schmoes have lots of opinions.

The difference that should exist between Schmoe's unqualified opinion and the licensed surveyors opinion should be that the surveyor's opinion should be sufficiently based upon boundary principles that have been defined and shaped in the courts such that it has a high probability of withstanding challenge in court.

Schmoe, on the other hand, has no expectations of correctness associated with his opinion. With a fairly solid footing in high school trig and a couple summers working with a boundary surveyor, Schmoe can identify most survey monuments (as long as they have ferrous in them or are already painted bright pink), can read the bearings and distances in a deed description, apply the math to the monuments he found and slam new iron in the ground. If that's all that goes into a surveyor's opinion, there would be no need for a license. And if the public has no right to have a higher expectation of correctness of boundary locations from a licensed surveyor, then a license for surveyors is a sham that is actually harmful to the public, and surveying should not be considered to be a profession. Any schmoe could do it.

* Correctness does not mean that there should or even can be a guarantee of absolute correctness, but that the surveyor was diligent enough to make a reasonable effort to find evidence pertinent to the problem, and exercised care and demonstrated the competence that would be expected of a competent surveyor under similar conditions. See Bell v. Jones, 523 A. 2d 982 (1986), for discussion of the appropriate standard of care.

Correctness as applied to surveys is a measure of defensibility. If the boundary opinion represented by your map and monuments is the result of knowing and applying applicable boundary principles to the matter and you arrived at a solution that other competent boundary surveyors may have also arrived given the same availability to evidence of the boundary, then the survey is reasonably defensible and sufficiently "correct".


Check your PMs Bryan.