DP5

DecisionPoint
http://proethica.org/ontology/cases#DecisionPoint

DP5

For engineers for whom pollution liability insurance remains genuinely cost-prohibitive even after market re-entry, what conditions must be satisfied to ethically retain a modified indemnification clause, and what disclosure and verification obligations apply?

A subset of engineers — including potentially Engineer A — may face a situation where pollution liability insurance has re-entered the market generally but remains cost-prohibitive for their specific practice size, specialization, or risk profile. These engineers must decide whether they retain an ethical right to use broad indemnification clauses under a residual affordability exception, and if so, what procedural and disclosure obligations attach to that exception.

Conduct and document a good-faith, current-market assessment demonstrating that available pollution liability insurance is genuinely cost-prohibitive for the engineer's practice, limit any retained indemnification clause to the narrowest scope necessary (excluding gross negligence), and affirmatively disclose to clients both the existence of the clause and the affordability basis for its retention — satisfying the residual Section III.9 exception through procedural rigor and transparency.

If pollution liability insurance is unavailable or cost-prohibitive and the engineer is unwilling to accept uninsured personal liability, decline to offer pollution-related consulting services rather than contractually transferring the risk of the engineer's own negligence to clients — treating the learned profession personal liability acceptance obligation as a threshold condition for practice rather than a transferable burden.

Continue using the broad indemnification clause on the basis that insurance was unavailable during the liability crisis, without conducting a current-market affordability assessment, treating the historical justification as sufficient ongoing authorization — effectively maintaining the clause without verifying whether the Section III.9 exception conditions remain satisfied under current market conditions.

Licensed Professional Engineer for Whom Pollution Liability Insurance Remains Cost-Prohibitive After Market Normalization