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In re Bombardier

Supreme Court of Vermont

January 26, 2018

In re Gregory J. Bombardier

          Stephen A. Reynes, Appellate Officer William L. Gagnon of Heilmann, Ekman, Cooley & Gagnon, Inc., Burlington, for Appellant.

          Elizabeth A. St. James, Office of Professional Regulation, Montpelier, for Appellee.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          EATON, J.

         ¶ 1. Respondent is a professional engineer licensed by the State of Vermont. He challenges the Board of Professional Engineering's decision, affirmed by an administrative officer from the Office of Professional Regulation (OPR), that he engaged in unprofessional conduct. We affirm.

         ¶ 2. In August 2015, OPR provided respondent with a Specification of Charges. It included a statement of facts concerning respondent's investigation of an insurance claim, detailed below. It faulted respondent for the inspection itself as well as his failure to review or reconsider his opinion after being provided with contrary opinions from a contractor and another engineer. OPR alleged, among other things, that respondent committed unprofessional conduct in violation of 3 V.S.A. § 129a(b)(1) and (2) because, on a single occasion, he failed to conform to the essential standards of acceptable and prevailing practice.

         ¶ 3. Following a contested hearing, the Board made the following findings. In 2014, respondent was hired by an insurance adjuster on behalf of an insurance company to investigate a claim filed by Rand Larson against Atlas Plumbing & Heating, LLC. Mr. Larson alleged that Atlas had notched a support beam while installing radiant heating in his home, causing his floor to buckle. The notch, which was approximately 2.5 inches deep and 5.5 inches wide, was located at the top of a double two-by-twelve-inch beam that ran under the proposed kitchen area of Mr. Larson's home. Respondent was asked to provide his opinion on the cause of the floor buckling. Respondent conducted his investigation solely for Atlas's insurance carrier. Mr. Larson did not hire respondent and had no contractual relationship with him.

         ¶ 4. Mr. Larson had the flooring work done as part of a broader home renovation project. As part of this project, Mr. Larson also had a building contractor install a skirt on the north side of the house to conceal the foundation and cantilevered construction. Concrete sonotubes were installed to attach and support the skirt. The sonotubes were not intended to support the house itself, which had cantilevered over the concrete foundation walls since 1993. After Mr. Larson discovered the notched beam, he also had the contractor perform remedial work intended to shore up the north wall of the house from the exterior, including jacking and installing additional vertical supports beneath the north wall.

         ¶ 5. Respondent inspected Mr. Larson's home on June 20, 2014. At that time, the remedial shoring work was in progress. Mr. Larson was not present, but his contractor was. The skirting had been removed from a portion of the north wall; excavation was in progress; two sonotubes could be seen under the rim joist; a third sonotube lay nearby on the ground; and a bottle jack was visible beneath a wood beam and adjacent to what appeared to be a new wood post. The sonotube at the east end of the exposed area was shimmed to the underside of the rim joist, and appeared new compared to the weathered surface of the other two sonotubes.

         ¶ 6. Respondent also observed sandbags placed near the southeast corner of the house, which he inferred were to divert stormwater. He saw that a sonotube placed in the general area of the settlement was out of plumb. Respondent assumed that the sonotubes were "foundational elements" that had been installed to support the rimboard under the north wall.

         ¶ 7. Respondent then viewed the notched beam from above through a hole that had been cut in the flooring. [*] He observed that there was no cracking or splintering of the beam in the notch area. He was unable to see the notched beam from below. Respondent concluded that the floor settlement was not caused by the notched beam, but rather by settlement of the exterior sonotube due to excessive stormwater runoff and the excessive freeze and thaw cycles of Vermont winters.

         ¶ 8. Following respondent's inspection, Mr. Larson hired another engineer, James Baker, to investigate the cause of the floor settlement. Mr. Baker believed that the notched beam caused the floor to settle. After receiving Mr. Baker's report, Mr. Larson contacted respondent seeking a reinspection; respondent did not respond. The insurance company provided respondent with a copy of the Baker report, asking whether there was anything in it that would cause respondent to reinspect the property or question his own opinion. Respondent saw nothing in the Baker report that caused him to question his own opinion. In August 2014, the insurer denied Mr. Larson's claim. Mr. Larson subsequently sent an email to respondent, 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.

         ¶ 9. As noted above, OPR alleged that respondent committed unprofessional conduct by conducting a deficient investigation and by refusing to reconsider his conclusion after being provided with evidence "that his findings were incorrect" from a contractor and engineer hired by Mr. Larson. In its Specification of Charges, OPR asserted that "[a]fter receiving multiple conclusions and opinions from other knowledgeable tradesmen or other professional engineers that are contrary to one's own, the essential standards of acceptable and prevailing practice require a professional engineer to review or reconsider the professional opinion he or she rendered in light of the contrary opinions."

         ¶ 10. The Board did not find that respondent committed unprofessional conduct by failing to review or reconsider his opinion. It agreed with respondent that there was no new information in the Baker report that would cause respondent to question his own opinion. It noted that respondent ...


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