Florida Board Drafting Rules That Could Stem Bogus Engineering Reports in Claims
For the last several years, complaints have piled up, contending that some Florida engineers have testified or have submitted reports in insurance claims lawsuits about major property damage that was somehow caused by relatively minor wind events.
Some of the plaintiffs’ expert-witness engineers appeared to cite irrelevant or unproven research, or have misconstrued studies to fit the needs of the policyholder attorneys’ claims, according to the complaints and people familiar with them.
“Some of these reports are just fraudulent. The engineer didn’t even go and look at the property—they just looked at photos,” said John C. Pistorino, a veteran Miami structural and civil engineer who helped develop south Florida building codes after Hurricane Andrew hit the state in 1992.
Pistorino noted that examples of questionable engineering assessments in Florida are many. One plaintiffs’ testifying engineer claimed to have written as many 300 reports in a year. That number strains credulity on how the engineer could have had time to investigate the cause of the damage in so many insurance claims, he said.
But despite a growing number of complaints from engineers, building officials and others, climbing from one complaint in 2021 to at least nine in 2023, the Florida Board of Professional Engineers seems hamstrung in its ability to discipline engineers accused of fraud, said Pistorino and others experienced in insurance litigation in a state that until recently was known for its extreme levels of claims lawsuits.
The problem is, the Board, like at least a few other states’ engineering licensing organizations around the country, has no rules regarding engineers’ ethics and responsibilities in drafting damage assessments. It often comes down to a matter of “professional opinion,” with no easy way to penalize bogus claims or enforce discipline, Pistorino and other engineers have said.
Most of the Board’s responsibility rules have to do with design standards for new projects, Pistorino wrote in a recent article for the board. The Board’s prosecuting attorney has said that it is difficult to find probable cause against an engineer, even when a complaint may be valid, without having rules in place that address reports and standards for existing damaged buildings, he noted.
“I’m frustrated. Engineers for insurance companies are frustrated,” said Pistorino, who is a member of the Board’s probable cause committee that has examined complaints.
The questionable reports and depositions are costing businesses and homeowners, including Pistorino himself, every year as property insurers pay millions to litigate claims or to settle cases that don’t warrant payouts, he said. A number of carriers have refused to write homes with roofs that are older than 15 years, and many have raised annual premiums.
The frustration could soon be salved, at least to some degree.
The Board of Engineers is now in the process of drafting rules that specifically address engineers’ practices and protocols in writing damage reports. The proposed rules, as currently drafted, would require engineers’ assessments to meet multiple criteria and include new documentation.
Tile roofs, popular in much of Florida, have long been the subject of exaggerated damage claims, according to engineers that have worked insurance cases. Under the proposed rules, assessment reports on steep slope/concrete or clay tile roofs would have to include published research that the engineer relied on; tests that were performed, such as the Florida Building Code Standards Test procedure to measure static uplift resistance; and cite other engineering principles that support the findings of the report.
Other sections would require engineers to comply with the Board’s general responsibility rules as well as more specific rules; to conduct evaluations in accordance with American Society of Civil Engineers’ published standards and guidelines; and only engage in assessments if their own experience and expertise is relevant.
Also, the engineers providing damage evaluations must “verify accuracy of information recorded by the engineer’s authorized representative and/or the delegated engineer from a site visit that is part of the engineer’s deliverable documentation.”
“It’s been a long time coming,” said George Miles, a Daytona Beach consulting engineer who has become known as a whistleblower in Florida engineering and insurance circles.
Miles has filed complaints against multiple engineers in the last three years over damage reports that Miles said are based on false conclusions, unproven theories or irrelevant research. Miles has written reports that counter policyholder experts, and he has combed through dozens of depositions in insurance cases, exposing what he said are blatant examples of some engineers claiming wind losses when the damage was actually pre-existing or was caused by age or wear and tear.
In one recent deposition, a plaintiffs’ engineer cited research that he claimed showed that a minor wind—less than 60 mph—could rip relatively new shingles off a roof. Miles said the cited research study never addressed shingles, only soffit material under the eave of the roof. Another Florida engineer whom Miles had filed a complaint about has argued in deposition that wind accelerates as it moves over a structure, a claim that other engineers have long disputed and which Miles said is not backed by any evidence.
“It’s appalling what some of these guys are doing,” he said.
Insurance attorneys have said that the best defense against questionable claims is to impeach the plaintiffs’ expert witnesses on the stand, or outfox them with other, more credible engineers. But a few have agreed that tougher rules would help rein in a “cottage industry” of paid plaintiffs’ engineering reports, would discourage fraudulent assessments, and would help reduce the basis for some eyebrow-raising insurance claims.
A few plaintiffs’ lawyers have said engineers need to have the freedom to counter insurance company claims denials, especially now that Florida lawmakers have made it more difficult for some claimants to have their day in court.
The impact that the new rules have will depend, in part, on what punitive measures and enforcement mechanisms the board adopts, Miles said.
Final adoption could be months from now. The attorney for the Board of Engineers, Lawrence Harris, said that once the Board finalizes the proposed rules, a legal notice will be published. Interested parties will have 21 days to comment. If the rules are revised, another three-week comment period will be allowed before final adoption of the rules.
Even then, the rules can be challenged, which would send the matter to an administrative law judge for review.
“In practice, the shortest possible time for a rule to be adopted is about 100 days from the time the language is actually voted on and published,” Harris said in an email. In practice, its usually more like six months, depending on the type of comments and changes necessary.
“I’ve had some rules that have taken almost two years to fully develop, from concept to adoption,” he noted.
It’s possible that final review could rest with the Florida Legislature. State law requires lawmakers to ratify rule changes that can cost businesses more than $1 million over a five-year period, Pistorino said.
Pistorino said he and his 59-year-old firm have little to gain from the new rules. His team of 60 engineers focus mostly on construction of large commercial buildings and are asked to write damage assessments or to testify only once or twice a year. Still, he said, the profession needs more-specific rules to help prevent fraud.
Comments on the rules can be emailed to Board@fbpe.org. The proposed rules can be seen here.
Related: How One Florida Engineer Tried to Blow the Whistle on Others