Issues Affecting Professional Liability Claims against Design & Construction Professionals in 2021
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WEBINAR Issues Affecting Professional Liability Claims against Design & Construction Professionals in 2021 Tuesday, May 4, 2021 Michael Beckelman Wendy Testa Partner – Houston, TX Partner – Philadelphia, PA 713.353.2028 215.606.3910 michael.beckelman@wilsonelser.com wendy.testa@wilsonelser.com
5/4/2021
DESIGN PROFESSIONAL’S TOOL
BOX FOR MANAGING RISK
Wendy D. Testa Michael Beckelman
Co-Chair of Design Professional Co-Chair of Design Professional
and Complex Tort and General Practice
Practices Wilson Elser - Houston
Wilson Elser - Philadelphia
© 2021 Wilson Elser.
1 All rights reserved.
Course
Description
The course will address issues of
importance for Architects and Engineers
including: allocation and management of
risks and avoidance of claims; key
contract provisions and concerns; and
recent legal developments and trends.
Learning
Objectives
This seminar will provide a comprehensive assessment of risk
management tools available to architects and engineers. Attendees
will gain critical insight in order to evaluate and balance business
opportunities against risks, avoid unmitigated risk, and when
warranted, accept measured risk while learning how to minimize,
mitigate, and manage risk.
At the end of this presentation you will:
1. Understand the concept of Risk Management and its application to
the professional practice of architecture and engineering, including
client relations, contract negotiation, and construction phase
services;
2. Be able to identify the possible defenses to a professional liability
claim;
3. Be able to spot and recognize the nuances of various contract
clauses that may result in increased exposure to risk and potential
professional and other liability;
4. Be able to formulate a strategy for shifting, transferring, mitigating,
and managing risk through: client education, controlling, and
managing client expectations, limiting liability, qualifying and
conditioning contract language, and monitoring continued exposure
to risk throughout the duration of a project or a client relationship.
1
5/4/2021
Smart Contracting
4
• Contract Documents
• Effective ADR
• Scope of Work
• Cost Estimates
• Standard of Care
• Site Visits
• Compliance with Laws and Codes
• Limitations to Liability
• Termination
• Ownership of Documents
• Duty to Defend, Indemnify and to Insure Another
© 2014 Wilson Elser. All rights reserved.
What are “Contract Documents”?
• “Contract Documents” are generally more than just the
contract that you enter
• Those documents to be included in “Contract
Documents” will be defined in the contract
• “Contract Documents” will typically include:
– Your Contract for the Project
– Design plans and specifications
– The Prime Contract and “Prime Contract Documents”
related to the project if you are a sub-consultant
Effective Alternative Resolution
(ADR) Clauses
• Agreed upon and SPECIFIC terms
– Have a detailed resolution process that is
• Realistic
• Attractive
• Negotiated
– Do not forget to address the details such as specifically what
issues would be addressed under ADR
• “anything arising from a contract”
– Select a location for arbitration/mediation
– Specify a selection process for an arbitrator/mediator
© 2014 Wilson Elser. All rights reserved. 6
25/4/2021
Effective Alternative Resolution
(ADR) Clauses
• Steps to effective resolution
– Ease of process
– Time limited steps prompt resolution
– Agreed to by all
• Do not agree as a nonparty to be bound by
arbitration
• Requirement of contract between other on job
(e.g., owner/GC/CM
© 2014 Wilson Elser. All rights reserved. 7
Mediation v. Arbitration
Benefits to Mediation:
– Non-binding (not a final decision)
– Flexibility
– Less costly than trial
– not all arbitration forums are equal
– Very open to negotiation
– Resolve dispute under “relaxed” terms
– Arbitration awards may be final / binding decision or difficult to
appeal
– Arbitration allows for limited discovery
– Arbitration is more adversarial than a mediation (like a mini trial)
© 2014 Wilson Elser. All rights reserved. 8
Scope of Work—Avoid wearing too many hats
Design professionals trying to add value to services provided
– Detail must be provided in scope
– Actual work done on project must follow work outlined in
scope
– Avoid ambiguity in scope and titles for your role on the job
• E.g. different names or titles for you throughout the
contract
– Avoid performing services outside traditional scope of
design professionals services
– DOCUMENT
© 2014 Wilson Elser. All rights reserved. 9
35/4/2021
Cost Estimates
• Design professionals should make no guarantee or
warranty that a project can be built within the estimate
• Insist that an owner identify a project budget in writing
• If a project does not move forward within specified time
period, a cost estimate may be revised
• Design professionals should limit responsibility for
redesign due to reduced scope or budget constraints
© 2014 Wilson Elser. All rights reserved. 10
Cost Estimates
Example of favorable language for cost estimates
© 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.
Standard of Care
• Avoid assuming a heightened standard of care
– Accepting relationship of trust and confidence
– Assuming fiduciary duty
– Convenient or promise to perform to our best
skill and judgment
• The best language to use will compare you:
– To a similarly situated design professional
– Reasonably prudent design professional
• Recommended language can be found in AIA
Document B101 Section 2.2
© 2014 Wilson Elser. All rights reserved. 12
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Standard of Care
We recommend language similar to this AIA-
approved language:
“The Architect shall perform its services
consistent with the professional skill and care
ordinarily provided by members of the
profession practicing in the same or similar
locality under the same or similar
circumstances. The Architect shall perform
its services as expeditiously as is consistent
with such professional skill and care and the
orderly progress of the Project.”
(See AIA Document B101, Section 2.2)
© 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.
Site Visits
• Identify these as observations, not inspections, to avoid an assumption of
duty to supervise the work
• Specify the purpose and the frequency as well as what you are not doing
during your site visits (e.g. safety obligations)
• Documenting and photography while on site is critical
– Multiple design professionals on a project (clear delineation of work)
– Predecessor design professional
– Preexisting issues on job –resolve before your entry onto the site
– Abandoned and restarted projects
• Regular site visits may result in an assumption of a duty to supervise the
work
• We caution against language stating that the DP will be present during
critical periods
– What if something goes wrong and you are not there?
– Breach of duty
© 2014 Wilson Elser. All rights reserved. 14
Compliance with Laws & Codes
• Some contracts may mandate compliance
or specify that failure to maintain
compliance will place a professional
consultant in default
© 2014 Wilson Elser. All rights reserved. 15
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Compliance with Laws, Codes, Etc.
© 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.
Compliance with Laws, Codes, Etc.
Why is this a problem?
© 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.
Limitations of Liability
Drafter beware: Contract ambiguity will
likely be interpreted in favor of the party
who did not draft the document
© 2014 Wilson Elser. All rights reserved. 18
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Limitations of Liability
• Evidence that a contract was negotiated
strengthens the chance of enforcement
– Put communications about proposed changes
in writing
• Most courts will uphold clauses limiting liability if
they appear overreaching or against public policy
• Limitations on liability are more likely to be upheld
than “hold harmless” clauses
© 2014 Wilson Elser. All rights reserved. 19
Limitations of Liability
• Takeaway: There should be a reasonable
relationship to limiting damages and costs
of service or design professional
involvement on a project
© 2014 Wilson Elser. All rights reserved. 20
Termination
• Termination for convenience—Must
ensure sufficient notice
• Termination for cause
– Make sure design professional also has a
right to terminate for an owner’s breach
– Make sure there is a cure period
© 2014 Wilson Elser. All rights reserved. 21
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Ownership of Documents
• Owner should not be entitled to drawings, professionals
are selling services (i.e., the building).
• Recommend a non-exclusive license to the owner
• If ownership is insisted, include indemnification language
and do not represent that the documents are complete
• Electronic data…
© 2014 Wilson Elser. All rights reserved. 22
Contractual Obligations to Defend, Indemnify,
and Provide Coverage
• Professional liability (PL) policies cover
professional services of its insureds only.
• Insurer pays on behalf of its insured if
insured is negligent while performing
professional services
© 2014 Wilson Elser. All rights reserved. 23
Professional Liability (PL) v.
General Liability (GL)
• You may be able to obtain additional insured
status under another’s GL policy if policy
language provides for it
– Caveat—what is promised for in contract, may
not be provided for under promisor’s policy
• Design professionals NEED BOTH PL and GL
policies
– But must be wary of coverage gaps based on
different types of policies
© 2014 Wilson Elser. All rights reserved. 24
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Indemnification Clauses in Contracts
Not typically available under PL policy
of another EVEN IF PROMISED (with a
few exceptions…limited endorsement)
© 2014 Wilson Elser. All rights reserved. 25
Indemnification Clauses in Contracts
• To the extent you can get it:
– Hold harmless clauses strictly construed by courts and
frequently stricken
– Can only be indemnified by another to the extent of that other
party’s negligence
– Indemnification clauses precluded in some states
• Know your anti-indemnity statutes
– Consider spilt indemnification clauses in contracts
– Review contractual obligations against policies under which
promises are made
– Even if you are not a contractual indemnitee you may be (or
seek) additional insured status
© 2014 Wilson Elser. All rights reserved. 26
Insurance Clauses in Contracts—What is Important?
• Requiring that the other party gives you certificate of
insurance (COI) is NOT enough—Ask for policy!
• COI = evidence that party has insurance but not what
may be required to afford additional insured status to
you.
© 2014 Wilson Elser. All rights reserved. 27
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Suggested Insurance Clause Language
• Policy of another required (not just a COI)
• Other party’s policy applies on primary basis
• Obligation to provide insurance coverage to defend you
should be consistent with indemnification clause
– BUT two clauses are NON-CONTINGENT
– For “alleged” negligence—immediate trigger
– If indemnification clause is stricken by a court
Insurance clause survives
• When it is possible (CGL policy), seek additional insured
status.
© 2014 Wilson Elser. All rights reserved. 28
Takeaways Related to Contractual Risks and Defenses
• Review your contracts and coverage REGULARLY
– Review for consistency
– Make sure policies respond to promises made in
contracts
– Keep policies up to date on emerging risks
– Check to see what rights you are afforded under
contracts of others (third party beneficiary)
– Anti-indemnity statutes – know them; vary from
state to state
• Enforcement of language is very state specific.
– Have policies reviewed regularly by a
knowledgeable professional.
© 2014 Wilson Elser. All rights reserved. 29
What is a “Claim”?
• Defined:
– A claim is a demand for something that a party believes they are
owed as a result of something caused by another party
• What a claim is not?
– A claim is not necessarily litigation but litigation grows from a
claim
• Types of Claims:
– Delay Claims
– Defect Claims
– Warranty Claims
– Contract Violation Claims
– etc.
105/4/2021
Essential Steps for the Defense of a Claim
• Pre-Claim
– Save EVERY document from EVERY project
• If it is not documented, IT DID NOT HAPPEN
– Changes to the project or scope of work
• Make sure to formally document all changes – If it is
not documented, IT DID NOT HAPPEN
• Post-Claim
– Immediately
• Report to your carrier
• Save documents
• Work with counsel
Claim Trends
• Abandoned, Suspended, Restarted
Projects
• Novel / new project type – green build,
cannabis production facilities, modular
• Code Changes
• Scope Creep
• “Warranty” statements / assuming
heightened standard of care
• Uptick on Fee claims and delay claims
© 2014 Wilson Elser. All rights reserved. 32
Risks Related to Restarted Project
(DP Previously Involved on Project)
Before Resuming Work
– Identify the Scope of Work!
– Document conditions prior
to doing so
– Beware of “time is of the
essence” language; makes
the DP the guarantor of the
time schedule and is unwise
– Particularly problematic for
restarted projects!
33
© 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.
115/4/2021
Risks From Green or Alternative Design
© 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.
Identify all applicable code
requirements and performance criteria
e.g. Superstorms (negligent design for
failure to design consistent with flood
protection); exterior envelope litigation
(adequacy of material and requisite
thickness of materials used)
© 2014 Wilson Elser. All rights reserved. 35
Risks Related to “Scope Creep”
• Desire to provide added value to the cost of services
• Performance of services outside the documented scope
or outside the traditional professional services performed
• Failure to document change in scope of work
• Failure to confirm whether services you agree to perform
under the contract (or outside the original contract) are
consistent with coverages
• Mischaracterization of your title or duties on a project
© 2014 Wilson Elser. All rights reserved. 36
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Risks Related to “Warranty” statements /
assuming heightened standard of care
(1) Advertising/marketing materials – avoid guarantee of
specific results
e.g. website; others’ marketing materials for the
project
(2) Assuming an expansive role on project by
ambiguous language in contract documents / scope
of work
e.g. design manager; owner’s agent
© 2014 Wilson Elser. All rights reserved. 37
Risk Management / Mitigating Losses
• Document, document, document
• Risk training for employees (documented and regularly)
• Vet clients and subconsultants
• Present options to client and document client’s directives /selections in design,
materials
– Outline advantages and disadvantages
– Impact on cost, performance, schedule and aesthetic
• Document Retention: what to keep and for how long
• Project Closeout Procedures (checklist)
– Review scope v. actual work on project
– Client signs off on completion
– Retain detailed project file / checklist – notices to agent of incidents; COs;
RFIs and responses; final approvals; contract documents; policies / Cos;
communications (electronic/written); observation logs/photos, etc.
© 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.
Questions?
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© 2021 Wilson Elser. All rights reserved.
135/4/2021
Thank You!
Wendy Testa, Esq.
Partner
Wilson Elser – Philadelphia
(o) 215.606.3910
(m) 610.331.4487
Wendy.testa@wilsonelser.com
Michael Beckelman, Esq.
Partner
Wilson Elser – Houston
(o) 713.353.2028
(m)832.250.3343
Michael.beckelman@wilsonelser.com
© 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.
14Michael
Beckelman
Partner
Contact
Houston
p. 713.353.2028
f. 713.785.7780
michael.beckelman@wilsonelser.com
Michael Beckelman is the regional chair of the Complex Tort & General Casualty practice and
Services
a co-chair of the rm’s Design Professional practice. Mike focuses on complex litigation
Architects & Engineers matters in both state and federal courts. Mike handles general, product, professional and
Aviation & Aerospace premises liability; construction and architect and engineer liability; trucking and
transportation; and commercial litigation.
Complex Tort & General
Mike has obtained substantial results through early case development and the prompt
Casualty
resolution of claims. Always the “voice of reason,” Mike is a consummate negotiator who
Latin America often settles even the most di cult cases. Although based in Houston, Mike has experience
Municipal/Local Government handling cases throughout New York and Texas. He also has handled negotiations on behalf
of clients and insurers in Oklahoma, Louisiana and New Mexico.
National Trial Team
Prior to joining the rm, Mike served with the Manhattan District Attorney’s O ce as an
Professional Liability & Services
assistant district attorney and with the O ce of Special Narcotics Prosecutor for the City of
Product Liability, Prevention & New York. Mike has extensive experience with investigations and grand jury proceedings and
Government Compliance has tried numerous cases to verdict.
Transportation
Areas of Focus
Canada
Architect & Engineer Malpractice
Mike focuses on the defense of architects, engineers and surveyors in connection with
Admissions construction defect, personal injury and professional malpractice claims. He has experience
Bars in defending design professionals, contractors, commercial construction rms, construction
Texas, New York managers and owners across Texas, particularly with regard to defense, indemnity and
coverage issues as well as design defect issues. In addition, Mike has successfully represented
Courts
U.S. District Court, Northern District of claims asserted against construction contractors in both construction defect and personal
Texas injury claims.
U.S. District Court, Eastern District of Complex Tort & General Casualty
Texas
Mike has defended a broad spectrum of general liability matters, including premises liability,
U.S. District Court, Western District of premises security liability, vehicle-related matters and other forms of personal injury cases.
Texas
His experience also includes the defense of professional liability claims, product liability
U.S. District Court, Southern District of claims and coverage issues.
Texas
Trucking & Transport
Mike has represented trucking companies in state and federal courts throughout Texas in
Memberships & A liations litigation arising from property loss, severe personal injuries and fatalities. He also has
New York State Bar Association experience representing trucking companies in claims brought pursuant to the Carmack
Texas Bar Association
Amendment. Mike is currently representing several companies after having been appointed
Houston Bar Association
counsel by various truck insurers. He is a member of the rm’s Crisis National Response
Team, participating in the initial response to and investigation of trucking accidents.
EducationUniversity at Bu alo School of Law, Product Liability
J.D., 1997
Mike focuses on the defense of products liability claims asserted against a wide variety of
Binghamton University, B.A., 1993 products, including claims for design, manufacturing and marketing defects. His products
liability defense experience includes defending manufacturers and designers of medical
Certi cations/Licenses devices, appliances, amusement attractions, pharmaceutical products, mountaineering
equipment and industrial/oil eld equipment, among others.
Representative Matters
Represented a large bus company in connection with an accident that resulted in 13 fatalities
and 14 injured parties. Although the accident occurred in Mexico, suit was led in Texas by
many of the survivors and families of many of those who died. Negotiated a global settlement
that was very favorable to the bus company very early in the litigation.
Representing a tra c engineer in connection with a fatal vehicle accident on a toll road in
Houston. Plainti s have led suit asserting that the accident was proximately caused by
improper signage on the roadway. Plainti s have also led suit against various municipalities
and consultants with regard to the incident.
Represented a structural engineering rm in litigation involving numerous design
professionals and construction contractors in which a hospital owner sought in excess of $20
million in damage sustained to the structure’s roo ng system and resulting water intrusion
during both Hurricane Rita and Hurricane Ike.
Recently obtained the dismissal of all claims asserted against an amusement attraction
manufacturer in a design defect claim stemming from the injury of an attraction participant
who sought to recover for multiple injuries sustained while participating on the ride.
Representing the designer and manufacturer of a surgical cautery device in a case brought by
the parents of a three-year-old surgical patient that alleges the child was caused to sustain
facial burns as a result of defective design and/or manufacture of the product.Wendy D. Testa
Partner
Contact
Philadelphia
p. 215.606.3910
f. 215.627.2665
wendy.testa@wilsonelser.com
Wendy Testa is a co-chair of the rm’s Complex Tort & General Casualty and Design
Services
Professional practices. She focuses her legal practice on risk management services, defense
Accountants and insurance coverage litigation in the areas of professional liability, including
Architects & Engineers architects/engineers, brokers/agents and accountants; construction/construction defect;
product liability; transportation/trucking; and contract drafting, negotiating and risk transfer
Complex Tort & General
disputes.
Casualty
First and foremost, Wendy is an aggressive advocate for her clients. She develops strong
Construction client relationships through trust, responsiveness, reliability and attention to detail. From
Employee Bene ts inception to the successful conclusion of a case, her skills, experience and focus are all
directed toward achieving a cost-e ective resolution strategy in anticipation of her clients’
Employment & Labor
needs. Wendy is an e cient and e ective litigator as a result of her responsiveness and
Health Care Law attention to detail and the key issues of each case.
Insurance & Reinsurance Wendy handles defense and coverage matters for the U.S. and London insurance markets.
Coverage Her understanding of these markets and varied underwriting practices as well as her
experience in drafting and interpreting policy language contributes to her e ectiveness with
Lawyers
coverage analysis and as a litigator.
Medical Malpractice & Health
Care Areas of Focus
Pro Bono Professional Liability
Product Liability, Prevention & Wendy defends professional clients, with an emphasis on architects, engineers, brokers and
Government Compliance real estate professionals. Working closely with nationwide clients, she provides pre-claim
added value risk management services, including contract review and drafting, seminars,
Professional Liability & Services
webinars and continuing education programs. Her primary focus when formulating a defense
Transportation is to cost-e ectively resolve presuit and litigated matters or those pending before
administrative agencies and licensing boards.
Canada
Architects & Engineers
Wendy is experienced in the defense of architects, engineers, construction managers, design
Admissions
builders and surveyors and is proud to co-chair the rm's Design Professional practice team.
Bars She regularly engages in nationwide client risk management services for design professionals
Pennsylvania, New Jersey
including contract review, drafting and negotiating and providing seminars and continuing
Courts education programs on risk management tools, risk transfer, trending claims and hot topics
Supreme Court of the United States in the construction industry. Wendy is barred and has extensive experience in defending
U.S. Court of Appeals, Third Circuit architects and engineers in Pennsylvania and New Jersey.
U.S. District Court, District of New
Jersey Agents & Brokers
U.S. District Court, Eastern District of As part of her professional liability practice, Wendy represents wholesale and retail insurance
Pennsylvania agents and real estate professionals, including title agents. The scope of services she provides
is inclusive of those she provides for construction professionals.U.S. District Court, Western District of Construction / Construction Defect
Pennsylvania
Wendy’s practice in this area goes hand in hand with her signi cant experience defending
design professionals. She has defended contractors, commercial and residential construction
Memberships & A liations rms, construction managers and project owners in primarily in Pennsylvania and New
Philadelphia Bar Association Jersey, including disputes related to contractual defense, indemni cation and insurance
Camden County Bar Association coverage issues as well as multi-party, high exposure bodily injury and construction defect
National Association of Women in
claims. Wendy is the co-editor and contributor to the Wilson Elser Artisan/Construction Defect
Construction
RIMS: The Risk Management Society Law 50 State Review.
Professional Liability Underwriting Society
PLUS Mid-Atlantic Chapter Steering
General Liability
Committee, Mid-Atlantic Chapter Chair
2011-2012, 2016-2017 As a co-chair for the rm’s Complex Tort and General Casualty practice team, Wendy has built
Claims Litigation Management Alliance a diverse civil litigation practice handling premises, auto and liquor liability matters on a
(CLM); member Construction Claims
national basis for several Fortune 500 companies and other large self-insured clients. Wendy
Community; member Claims College
Committee; member Conference provides her clients with a high level of responsiveness and personalized attention to assist in
Committee risk and crisis management at the pre-litigation phase of potential claims and when preparing
a defense in litigated matters. Representative clients include construction rms, commercial
Awards & Distinctions and residential property owners and management companies, restaurants, and food and
beverage manufacturers, suppliers and distributors. In addition, Wendy has co-authored
Selected for inclusion
Wilson Elser’s 50-state Liquor Liability Law Review for the past several years.
in Pennsylvania Super Lawyers, for
Professional Liability: Defense
Litigation, 2016 - 2018 Insurance Coverage
Wendy's experience includes both coverage litigation and drafting coverage opinions for
insurers related to commercial general liability as well as professional liability policies. She
Education
has obtained very favorable results through motion and appellate practice of coverage
Widener University School of Law, J.D., disputes for her clients.
1997
The Pennsylvania State University, Product Liability
B.A., 1992
A large portion of Wendy’s practice involves the defense of product liability claims against
domestic and foreign manufacturers and suppliers of construction equipment, industrial
Certi cations/Licenses machinery; and food and beverage products. She advises clients and aggressively defends
their products in complex cases arising out of a product's design, manufacture or marketing.
These cases often involve wrongful death and catastrophic injuries, including brain damage,
amputation and paralysis, as well as substantial economic claims.
Representative Matters
Obtained Pennsylvania Superior Court reversal of lower court decision regarding the
interpretation of a claims made policy and a manuscript endorsement related to when a
claim is made for purposes of coverage a orded to a claim arising from personal injury
sustained in a nursing home.
Obtained summary judgment in the Superior Court of New Jersey, Burlington County as a
result of asserting contractual claims on behalf of a beverage equipment supplier for defense,
indemni cation and insurance coverage against a bankrupt manufacturer related to a
signi cant multi-party re loss claim. The client paid nothing in a $750,000 settlement and
was reimbursed for all defense fees/costs. As a result of the successful defense strategy in
the New Jersey litigation, a global settlement of a number of other nationwide re loss claims
involving the same manufacturer and its insurer was achieved with no contribution from the
client.
Won motions for summary judgment based on contractual defense/indemni cation issues in
construction litigation matters in the Superior Courts of New Jersey, Burlington and Camden
Counties and in the Court of Common Pleas, Philadelphia County.
Won motions for summary judgment (in three separate matters) based on Pennsylvania’s
statutory employer defense in construction-related personal injury lawsuits in Court of
Common Pleas, Philadelphia County.
Won appeal related to a contractual indemni cation and insurance coverage dispute between
contractors in the Superior Court of Pennsylvania, Eastern District.Obtained favorable settlement of a construction-related wrongful death action in Burlington County. As a result of obtaining summary judgment on behalf of owner and general contractor related to a third-party contractual indemni cation claim against plainti ’s employer/contractor, the matter resolved for $1.75 million total with plainti ’s employer assuming all defense fees and costs of our client as well as a signi cant portion of the settlement.
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