ISA Certification & "professional" services?

[samsquatch]

Here's a question open for discussion:
When you are providing services as an ISA Certified Arborist, are you providing Professional Services? I would guess not, since there is no personal license requirement at the State level. However, as a Certified Arborist you would presumably be providing advice in a capacity higher than a normal "tree guy".

Long story short, 2 years I was chasing the ISA Certification but I chose to abandon the idea at the time because a hypothetical situation dawned on me: What if I trimmed a tree for a customer, and then sometime after that the tree snapped and crushed the customer's house. As a "professional" that should have "known better", would I be liable?

A similar hypothetical: while doing work for a customer, he/she asks me "do you think this other tree over here should be trimmed or removed, because it's hanging over my shed?" And we say Nah, it should be fine, and then sometime later it crushes the shed.

And another: customer is concerned with blight on a tree. I visit the tree and conclude that it does not have an infestation or a disease, maybe just dehydration, but then sometime later the tree dies (and presumably, treatment might have saved it). Or the reverse: we treat a tree and it still dies?

Given the above situations and possibly resulting lawsuits: When you are ISA Certified, should you seek professional services insurance (often called an Errors & Omissions policy)?

I'm considering the ISA certification again this year, but wanted to get these questions answered before I do.

 

[cerviarborist]

If you're doing it for money, you're a professional and are already held to a higher standard of duty than an amateur. If you're trying to advance the argument that because you're not certified you can insulate yourself from torts and damage litigation, I don't think that will actually work.

If you don't want to be held responsible for care given to trees, abandon that segment of the market and focus strictly on removals. Then you'll only be subject to a lawsuit if the tree lives.

 

[samsquatch]

If you're doing it for money, you're a professional and are already held to a higher standard of duty than an amateur. If you're trying to advance the argument that because you're not certified you can insulate yourself from torts and damage litigation, I don't think that will actually work.

I wonder about the definition of a professional though, really. Many insurance companies, regulatory bodies, and by extension a hypothetical argument in court, would define a professional as someone who is licensed in that line of work and must regularly maintain the license with CEUs.
But what you say makes sense. Even if you're not a licensed professional, you're still subject to civil torts and litigation. General liability coverage is for physical damages to person/property vs E&O insurance is intended to cover financial loss. I take this to mean: E&O is not for only professionals, but anyone who is giving advice.

So a diligent tree guy, ISA certified or not, should be seeking both types of liability insurance to be more fully protected.

 

[samsquatch]

I suppose what I wanted to glean in this discussion is the relationship between the ISA Code of Ethics (link) and an ISA Certified Arborist's exposure to those code of ethics during a civil court case.
Thought being: if you weren't ISA Certified - the prosecutor would have to argue your supposed negligence ad hoc. Where as if you were ISA Certified, they would be able to run down a list of your direct "professional" responsibilities (the Code of Ethics) and poke holes, presumably making their argument much stronger.
Do you see what I'm getting at?

 

[Fivepoints]

Your on the hook either way if you took money from your customer. Your no more or less a professional in the eyes of the law because of isa or not. You have a business license and all other state required licenses right? As a pro, you are supposed to know and practice proper pruning, etc regardless of being a certified arborist. If you give your professional opinion to a customer on something, having errors and omissions is a good idea. If you really want to know the answer to this, go have a chat with your business attorney as it may vary from state to state.

 

[ATH]

Go to the scenarios where you made a diagnosis that was wrong... my guess is that the more "paper" you have to back up your qualifications, the better your argument of "that was not a likely based on the information available at the time of diagnosis" will stand. If you have nothing to back up your qualification to make such a diagnosis, the question becomes whether you were negligent in even offering an opinion.

Use the engineer example again: if I say a bridge is strong enough and it fails, no matter the circumstances, it would be pretty tough to justify why I said something so foolish...even if a 100000# truck drive across the bridge rated for 40000#. If a qualified engineer made the same statement and the same circumstances happened, my guess is they are a lot safer in court.

Of course...the same can be said of offering legal advise when not qualified to do so...so please understand I am not offering legal advise!!

 

[samsquatch]

You have a business license and all other state required licenses right?

Of course. But, brings up an additional point of why do professional licenses exist. Maybe for the following scenario when you're the head of a large engineering firm: Yeah, my company has a license to do business in this state (dept of commerce), but individual licenses are for the employees, the ones giving direct advice.

 

[ATH]

.... But, brings up an additional point of why do professional licenses exist. ...

For professions that;
A) Have a stronger organized lobby than the tree care industry ever will. Protecting their own from unwanted competition.
B) To protect other people from more harm than the tree care industry causes the public. For example: how many deaths will the average incompetent arborist cause (whatever that term may or may not constitute) in their career? How about an incompetent doctor or pharmacist? Civil engineer? Barber?

 

[samsquatch]

Yep, makes sense.

 

[colb]

My two cents; I don't think this is about the ISA. It is about the ANSI standard and the fact that if there are professionals in our field, you are among them. You might possibly make the argument that you are not a professional if you are in a state that requires certs to operate, but then you're unprofessional in the bad sense, where you will get in trouble for that. The ISA cert is an educational and marketing tool that can help us meet ANSI standards, but it is not a professional designation unless the tree manager deems it so.

 

[JD3000]

Perhaps an element of fear regarding being wrong and causing harm? As someone mentioned, if this is a concern than stick to your wheelhouse.

Before you give a professional opinion, have the qualifications to do so while doing your due diligence to provide a thorough response. A brief opinion about other work on a site has a way of turning into a separate consultation and one should be paid accordingly for an added service.

 

[Wrangler]

Samsquatch, I personally think you have it backwards.In the event you pruned a tree and it later failed you qualifications,expirience,paperwork for job(proposal and invoice with notations of possible hazards or need to monitor) credential and adherence to industry standards would protect you! Trees fail and trees die if you acted in a profesional manner all the things listed above would protect you.
If you perform work your outside your training and expirience, and something goes wrong- now you should be worried. I have no credentials for tree risk asessment so I tell my customers that for liability reasons I cannot give them a safety evaluation, they respect that. Great topic, i always choose words carefully when talking to clients , and even more careful about what I write, you have to be!

 

[samsquatch]

Yeah, the reverse as you say could also be a strong argument in court, I see that too. I guess it's always left up to the tree owner, if they choose to bring their case forward as a plaintiff, and you as the defendant are left to defend your actions as appropriate (assuming they were).

I like this:

I tell my customers that for liability reasons I cannot give them a safety evaluation

But I've come across this before and to my small town customers they just cross their eyes or roll their eyes, and I'm left to submit my estimate as a less reputable tree man. "why are you in this business if you aren't able to advise me one way or the other about my tree?"

Perhaps an element of fear regarding being wrong and causing harm? As someone mentioned, if this is a concern than stick to your wheelhouse.

I wouldn't say fear of being wrong. Instead, this discussion s a common one among business managers as it pertains to managing risk. In this case, civil court risk.

A brief opinion about other work on a site has a way of turning into a separate consultation and one should be paid accordingly for an added service.

Now your speaking my language

 

[Wrangler]

I hear what your saying! The way I approach it is I look at tree and tell client exactly what I am going to do to improve health ,safety,asthetics of tree and just as important I tell them what i will NOT do because of possible adverse effects.Make it clear proffesional/legal obligation is to follow industry guidelines desinged to ensure you improve trees future, not hurt it. This is where you demonstrate your knowledge and expertise and instill confidence. Tell the client what you have to offer and the science behind why it is a good investment for tree.If they want something more then like @JD3000 said thats a different service.