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
Laboratories | Aug 3, 2017
Today’s university lab building by the numbers
A three-month study of science facilities conducted by Shepley Bulfinch reveals key findings related to space allocation, size, and cost.
Lighting | Aug 2, 2017
Dynamic white lighting mimics daylighting
By varying an LED luminaire’s color temperature, it is possible to mimic daylighting, to some extent, and the natural circadian rhythms that accompany it, writes DLR Group’s Sean Avery.
Healthcare Facilities | Aug 2, 2017
8 healthcare design lessons from shadowing a nurse
From the surprising number of “hunting and gathering” trips to the need for quiet spaces for phone calls, interior designer Carolyn Fleetwood Blake shares her takeaways from a day shadowing a nurse.
Multifamily Housing | Jul 27, 2017
Apartment market index: Business conditions soften, but still solid
Despite some softness at the high end of the apartment market, demand for apartments will continue to be substantial for years to come, according to the National Multifamily Housing Council.
Multifamily Housing | Jul 27, 2017
Game rooms and game simulators popular amenities in multifamily developments
The number of developments providing space for physical therapy was somewhat surprising, according to a new survey.
Building Enclosure Systems | Jul 26, 2017
Balcony and roof railings and the code: Maintain, repair, or replace? [AIA course]
Lacking familiarity with current requirements, some owners or managers complete a roof or balcony rehabilitation, only to learn after the fact that they need to tear noncompliant railings out of their new roof or terrace and install new ones.
Multifamily Housing | Jul 12, 2017
Midyear Rent Report: 26 states saw rental price increases in first half of 2017
The most notable rental increases are in growing markets in the South and Southwest: New Orleans, Glendale, Ariz., Houston, Reno, N.V., and Atlanta.
Multifamily Housing | Jul 12, 2017
7 noteworthy multifamily projects: posh amenities, healthy living, plugged-in lifestyle
Zen meditation gardens, bocce courts, saltwater pools, and free drinks highlight the niceties at these new multifamily developments.
Accelerate Live! | Jul 6, 2017
Watch all 20 Accelerate Live! talks on demand
BD+C’s inaugural AEC innovation conference, Accelerate Live! (May 11, Chicago), featured talks on machine learning, AI, gaming in construction, maker culture, and health-generating buildings.
Building Team | Jun 22, 2017
Seven lessons learned on commissioning projects
Commissioning is where the rubber meets the road in terms of building design.