Worries about legal liability have long dogged the sustainable building movement, but insurance expert Karen Erger (Locton Companies) and attorney Eric Singer (Ice Miller LLP) say sustainability lawsuits are caused by the same types of issues that have always prompted clients to sue AEC firms. "The 'new' risks of green design are the same as in any kind of design," says Erger. The two presentated at BUILDINGChicago earlier this week (download the presentation).
Suits tend to center around four areas:
- Client expectations unmet (desired level of certification not achieved, project failed to qualify for incentives, energy savings not realized, sustainable elements increased cost or caused delay).
- Elevated standard of care.
- Uninsurable guarantees or warranties.
- Problems caused by new products or systems (didn't work as advertised, weren't installed properly, weren't operated or maintained properly).
The best tools for managing such risks are well-established, according to Erger and Singer:
- Define and document the client's goals. (Don't guarantee that goals will be achieved; set and reinforce reasonable expectations throughout the project; don't assume risk of factors you can't control.)
- Set a reasonable standard of care. Don't allow elevated language about your performance to creep into the contract (such as incorporation of marketing language from your initial proposal).
- Don't warrant or guarantee outcomes (specific level of a standard, specific energy savings, etc.).
- Do due diligence when specifying products. (Get the owner's informed consent for using new products, and document your research -- even if most if it is digital. Print it or take screen shots, and put it in a project file that you can find later.)
Singer says the AIA's Guide for Sustainable Projects (D503-2011) is "a really good guide for contract language modification and risk protection." The 2012 AIA Sustainable Projects (SP) forms incorporate model language into existing AIA contract documents (A101, A201, A401, B101, C401). Singer and Erger placed particular emphasis on not guaranteeing achievement of specific sustainability goals, on avoiding unduly elevating the standard of care beyond the ordinary level of professional practice, and on avoiding taking responsibility for functions that are being performed by other parties, including the contractor, subs, and the owner.
The AIA's form B101-2007 SP offers language protecting the architect when untested materials and equipment will be used, and the association also offers "Client Waiver and Informed Consent to use an Experimental Green Product." Since a manufacturer may no longer be in business months or years later, if a problem arises, management of legal liability for the use of experimental green products is important.
Related Stories
Giants 400 | Aug 30, 2019
2019 K-12 School Giants Report: 360-degree learning among top school design trends for 2019
K-12 school districts are emphasizing practical, hands-on experience and personalized learning.
AEC Innovators | Aug 27, 2019
7 AEC industry disruptors and their groundbreaking achievements
From building prefab factories in the sky to incubating the next generation of AEC tech startups, our 2019 class of AEC Innovators demonstrates that the industry is poised for a shakeup. Meet BD+C’s 2019 AEC Innovators.
AEC Innovators | Aug 15, 2019
Oracle’s replica of a construction jobsite creates an immersive environment for AEC professionals
The Oracle Construction and Engineering Innovation Lab allows visitors to walk through five different stages of construction work, to test new AEC technologies and training techniques.
Museums | Jul 29, 2019
A new museum debuts inside the Empire State Building
A $165 million, 10,000-sf museum opened on the second floor of the Empire State Building in New York City, completing the second of a four-phase “reimagining” of that building’s observatory experience, which draws four million visitors annually.
Multifamily Housing | Jul 23, 2019
Is prefab in your future?
The most important benefit of offsite construction, when done right, is reliability.
Healthcare Facilities | Jul 15, 2019
Can a kids’ healthcare space teach, entertain, and heal?
Standard building requirements don’t have to be boring. Here’s how you can inject whimsical touches into everyday design features.
BD+C University Course | Jul 8, 2019
Shadow box design: To vent or not to vent [AIA course]
A curtain wall shadow box is a spandrel assembly consisting of vision glass at the building exterior and an opaque infill at the interior side of the curtain wall system. This course is worth 1.0 AIA LU/HSW.
Building Tech | Jun 26, 2019
Modular construction can deliver projects 50% faster
Modular construction can deliver projects 20% to 50% faster than traditional methods and drastically reshape how buildings are delivered, according to a new report from McKinsey & Co.
Multifamily Housing | May 8, 2019
Multifamily visionary: AvalonBay’s relentless attention to detail
The nation's fourth-largest owner of apartments holds more than 85,000 apartments in 291 communities.
Industry Research | Apr 8, 2019
New research finds benefits to hiring architectural services based on qualifications
Government agencies gain by evaluating beyond price, according to a new Dodge survey of government officials.