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
Smart Buildings | Jan 7, 2015
Best practices for urban infill development: Embrace the region's character, master the pedestrian experience
If an urban building isn’t grounded in the local region’s character, it will end up feeling generic and out-of-place. To do urban infill the right way, it’s essential to slow down and pay proper attention to the context of an urban environment, writes GS&P's Joe Bucher.
| Jan 6, 2015
Construction permits exceeded $2 billion in Minneapolis in 2014
Two major projects—a new stadium for the Minnesota Vikings NFL team and the city’s Downtown East redevelopment—accounted for about half of the total worth of the permits issued.
| Jan 6, 2015
Snøhetta unveils design proposal of the Barack Obama Presidential Center Library for the University of Hawaii
The plan by Snøhetta and WCIT Architecture features a building that appears square from the outside, but opens at one corner into a rounded courtyard with a pool, Dezeen reports.
| Jan 5, 2015
Another billionaire sports club owner plans to build a football stadium in Los Angeles
Kroenke Group is the latest in a series of high-profile investors that want to bring back pro football to the City of Lights.
| Jan 5, 2015
Beyond training: How locker rooms are becoming more like living rooms
Despite having common elements—lockers for personal gear and high-quality sound systems—the real challenge when designing locker rooms is creating a space that reflects the attitude of the team, writes SRG Partnership's Aaron Pleskac.
| Jan 2, 2015
Construction put in place enjoyed healthy gains in 2014
Construction consultant FMI foresees—with some caveats—continuing growth in the office, lodging, and manufacturing sectors. But funding uncertainties raise red flags in education and healthcare.
| Dec 30, 2014
A simplified arena concept for NBA’s Warriors creates interest
The Golden State Warriors, currently the team with the best record in the National Basketball Association, looks like it could finally get a new arena.
| Dec 30, 2014
The future of healthcare facilities: new products, changing delivery models, and strategic relationships
Healthcare continues to shift toward Madison Avenue and Silicon Valley as it revamps business practices to focus on consumerism and efficiency, writes CBRE Healthcare's Patrick Duke.
| Dec 29, 2014
High-strength aluminum footbridge designed to withstand deep-ocean movement, high wind speeds [BD+C's 2014 Great Solutions Report]
The metal’s flexibility makes the difference in an oil rig footbridge connecting platforms in the West Philippine Sea. The design solution was named a 2014 Great Solution by the editors of Building Design+Construction.
| Dec 29, 2014
HDR and Hill International to turn three floors of a jail into a modern, secure healthcare center [BD+C's 2014 Great Solutions Report]
By bringing healthcare services in house, Dallas County Jail will greatly minimize the security risk and added cost of transferring ill or injured prisoners to a nearby hospital. The project was named a 2014 Great Solution by the editors of Building Design+Construction.