Lawsuit Concerns regarding FEMA Elevation Certificate Surveys

[Stuart Hagerman]

Hello Everyone! 

My name is Stuart Hagerman and I am Transportation Surveyor Party Chief with Caltrans in District 4 as well as owner of Hagerman Land Surveying(self proprietor), a very small surveying firm in Vacaville.  I almost exclusively perform elevation certificates for residential properties in the Sacramento and Bay Area, on average about one a week. My concern that I would like to share with this community is the potential for lawsuits in regards to floods. With the possibility of widespread heavy rainfall this coming winter I have become concerned that any one of the many properties I have surveyed will fall victim to flood damage. I am confident and take pride in the results of all my surveys and carry professional liability insurance, but the one thing I can't control is an act of God that may affect one of the properties I have surveyed. If or should I say when that time comes I fell like the easy thing to do would to point the finger at the surveyor(typ) 


Has anyone had experience with this type of lawsuit? What are some additional steps I can take to safeguard myself? Does anybody know of a lawyer that handles specifically these types of cases? Please share and discuss your experience. In my 13 years surveying I have not heard of this happening so I may be over thinking it.

Thank you in advance for your time!
Kindest Regards,
Stuart Hagerman, PLS

[Warren Smith]

If a catastrophe were to occur, the flood insurer would contact the local Flood Plain Administrator to investigate determination paperwork. If there were any irregularities, insurance companies would begin correspondence. You may be notified at this point by your insurer to explain your work and, hopefully, that would be the end of it. Read your policy coverage.

[LS_8750]

First of all, the FIRMs are notoriously inaccurate. A lot of those flood elevation certificates in borderline areas are used to update the ever ongoing FIS, i.e., the LOMA and LOMC. Surly you are doing your work per the instructions, so you are good.

When I am in a borderline area, I don't bother with GPS, but rather go to the traditional level loop and carry in elevation from a mile away or so, or from wherever I have to go. I don't do many because my methods are expensive. I would rather have my critical elevations within a hundredth or two in lieu of a tenth.

These 1% chance floods in any given year are tricky, even hocus pocus. If the waters rise above the BFE, does that really mean it was a 1% chance flood? Or was there something else going on during that flood event that contributed to the rising of the waters above the BFE?

It sounds like you are overthinking things a bit, which is a good quality for a PLS.

[Stuart Hagerman]

Thank you both for your input. I don't have a gps so I am by default running differental level loops every time I do an elevation certificate.

[dmi]

You are correct to be concerned but if there are massive floods, then you may be drawn into the litigation. I routinely turn away folks who call me with slab on grade located smack in the middle of a Coastal Flooding... I ask them what they will do if they get out of the zone and then their house is flooded the very next rainy season.....On top of all of this the government has been trying to shed the liability when the premiums have historically underfunded the insurance program....

[Jim Frame]

I don't have a gps so I am by default running first order, class II level loops every time I do an elevation certificate.

I'm wondering if you're using the term "First Order Class II" casually. Geodetic leveling is not a trivial undertaking, and very, very little First Order leveling is done anymore. Second Order Class II is tough enough, First Order anything is ridiculously expensive. Can you clarify, for the curious among us?

[Dave Karoly, PLS]

Theoretically if you follow the standard of practice and you have professional liability insurance, you should be okay.

This is why I let the side business go after the work dried up in 2008. The amount of potential liability (or having to defend a lawsuit) didn't justify the fees small clients are willing to pay, besides its really nice having the weekends off.

[LS_8750]

Mr. Ince has some solid points. If the buildings are within the floodplain boundaries, or bordering, or not, one can venture a guess that the soils beneath may not be all that stable. So, differential settlement might be at play before the flood ever takes place.

So what? So let's dance! Please click: https://www.youtube.com/watch?v=W3A9rLoz_0o

So the world needs surveyors too.

[mpallamary]

FEMA is fraud. Stay far, far away from these crooks, lest you get implicated.

http://www.foxnews.com/politics/2014/12 ... ap-errors/

[mpallamary]

http://www.amerisurv.com/PDF/TheAmerica ... ne2014.pdf

[mpallamary]

http://www.amerisurv.com/PDF/TheAmerica ... ly2014.pdf

[E_Page]

Another thing to consider in many parts of the Central Valley and low-lying areas around the bay is that there may be significant subsidence that will not become apparent in a single Flood Cert. If that flood event happens and you get dragged into a suit, what will you do if the plaintiff has since had another surveyor run elevations into the site and finds it to be 1/2 foot lower than you reported? What if you go out and re-run your level loop and also find the site 1/2 foot lower than you reported? Unless you can find and produce credible evidence of subsidence since you provided the Flood Cert, you will find yourself in a difficult situation.

1/2 foot subsidence over 5 years is not all that uncommon in some areas. I know of areas in the San Joaquin Valley that have exhibited up to 1/2 foot in a single year.

[William Magee]

My biggest concern is some of the perceptions about determination of the BFE. I have all too often come across information from, for now, un-named sources and individuals who have advocated determining BFE's by approximate methods, extrapolations and otherwise where an area is mapped as zone A. I understand the desire to make flood certs affordable, but my advice is simple. Don't do it. Unless you are a licensed and experienced hydrologist/hydraulics engineer, making a BFE determination in a zone A is a liability exposure one may be ill-prepared to defend.

Even in flood zones which the FIRM has a BFE determination on it you may be exposed more than you realize. Be aware that an area may have other engineering flood studies that might be considered as the best available study even though FEMA is publishing BFE's for the area. Even an area's flood plan manager may not be your best source to rely on. Nor the Dept. of Water Resources guy (remember those "un-named individuals I mentioned before?).

I work extensively in this arena, and I can say without a doubt that there are far more who misunderstand BFE determinations than those that do. Even in positions which should know better.

[LS_8750]

I have an inverse condemnation case where the County had been in possession of a hydrologic study conducted by the state, which greatly increased the limits of the floodplain, for 15 years prior to FEMA issuing its updated FIRM.

But let's be reminded that an elevation certificate is based on the FIRM and its accompanying FIS.

[Stuart Hagerman]

Thank you everyone for your input! Yes Jim you are correct and I was in error when I made that claim. I should not have done that and it was off topic, I have edited my earlier post.

[Stuart Hagerman]

My biggest concern is some of the perceptions about determination of the BFE. I have all too often come across information from, for now, un-named sources and individuals who have advocated determining BFE's by approximate methods, extrapolations and otherwise where an area is mapped as zone A. I understand the desire to make flood certs affordable, but my advice is simple. Don't do it. Unless you are a licensed and experienced hydrologist/hydraulics engineer, making a BFE determination in a zone A is a liability exposure one may be ill-prepared to defend.

Even in flood zones which the FIRM has a BFE determination on it you may be exposed more than you realize. Be aware that an area may have other engineering flood studies that might be considered as the best available study even though FEMA is publishing BFE's for the area. Even an area's flood plan manager may not be your best source to rely on. Nor the Dept. of Water Resources guy (remember those "un-named individuals I mentioned before?).

I work extensively in this arena, and I can say without a doubt that there are far more who misunderstand BFE determinations than those that do. Even in positions which should know better.

I have been using the interpolation method as described in this document, http://www.fema.gov/media-library-data/ ... /unit4.pdf to determine the BFE in AE flood zones. Perhaps I will start choosing the higher base flood elevation by default. See excerpt below...

BASE FLOOD ELEVATIONS FROM MAPS
BFEs are shown on the FIRMs as whole numbers. For AE Zones, or coastal and lake floodplains, use the BFE printed in parentheses below the flood zone designation. No interpolation is necessary. The same holds true for AH Zones with whole number base flood elevations. The base flood elevation for properties in the vicinity of the Rocky River at the confluence of Cobb Brook is 10 feet (NGVD or above mean sea level). For other numbered AE Zones, read the BFE from the nearest wavy “base flood elevation line.” Refer to the map legend or key if you are unsure of the line markings. For the Site B example, the base flood elevations on the FIRM, are marked “10,” above and below the site. If the site fell between the base flood elevations of 10 and 11, such as the area north of Site B between Glebe Way and Martling Way along the Rocky River, we could interpolate to find a correct base flood elevation based on the distance of the site from the base flood elevation lines. We could also locate the site on the profile based on how far upstream or down stream it is from cross-section A or B. Lastly, we could chose the higher base flood elevation, (e.g., 11) to best ensure protection from flooding.

[LS_8750]

Using whole number BFE is for design purposes.
Upper whole number BFE may not be good for flood insurance purposes.
But remember, much of it is hocus pocus anyway.

[Stuart Hagerman]

Using whole number BFE is for design purposes.
Upper whole number BFE may not be good for flood insurance purposes.
But remember, much of it is hocus pocus anyway.

Right, and yes I agree