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
Mixed-Use | Mar 13, 2015
Dubai announces mega waterfront development Aladdin City
Planned on 4,000 acres in the Dubai Creek area, the towers will be covered in gold lattice and connected via air-conditioned bridges.
Contractors | Mar 13, 2015
Construction materials prices rise for first time in six months
The largest monthly gain in petroleum prices in over three years caused construction materials prices to expand 0.4% in February, ending a six-month streak when prices failed to rise, according to the Bureau of Labor Statistics.
Contractors | Mar 12, 2015
Construction demand exploding in 2015, but costs complicate recovery
Raw materials and labor costs temper expectations for soaring profits.
Codes and Standards | Mar 12, 2015
Energy Trust of Oregon offers financial incentives for net-zero buildings
The organization is offering technical assistance along with financial benefits.
Multifamily Housing | Mar 12, 2015
Multifamily construction has been a boon to L.A.’s economy
A new study finds that nearly one-quarter of Los Angeles’ population lived in rental homes and apartments in 2013, a number that undoubtedly has increased since.
BIM and Information Technology | Mar 11, 2015
Google plans to use robots, cranes to manipulate modular offices at its new HQ
Its visions of “crabots” accentuate the search-engine giant’s recent fascination with robotics and automation.
Modular Building | Mar 10, 2015
Must see: 57-story modular skyscraper was completed in 19 days
After erecting the mega prefab tower in Changsha, China, modular builder BSB stated, “three floors in a day is China’s new normal.”
Sponsored | Metals | Mar 10, 2015
Metal Building Systems: A Rising Star in the Market
A new report by the Metal Building Manufacturer's Association explains the entity's efforts in refining and extending metal building systems as a construction choice.
Retail Centers | Mar 10, 2015
Retrofit projects give dying malls new purpose
Approximately one-third of the country’s 1,200 enclosed malls are dead or dying. The good news is that a sizable portion of that building stock is being repurposed.
Museums | Mar 9, 2015
Architecture based on astronomy principles for new planetarium in Shanghai
The ancient Chinese civilization left some of the earliest records of humans studying the stars and skies. To exhibit this long history, a new planetarium and astronomy museum is planned for construction in Shanghai.