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
| Dec 10, 2014
CannonDesign acquires Astorino, forms design-led design-build division
The merger also extends CannonDesign’s presence in the markets Astorino currently serves, namely Pittsburgh and Abu Dhabi.
| Dec 9, 2014
Steven Holl wins Mumbai City Museum competition with 'solar water' scheme
Steven Holl's design for the new wing features a reflective pool that will generate energy.
| Dec 9, 2014
ABC economist predicts continued construction industry growth in 2015
In his latest report, ABC's Chief Economist Anirban Basu forecasts nonresidential construction spending to expand by roughly 7.5% next year, led by the power, lodging, office, and manufacturing sectors.
| Dec 8, 2014
How brick and mortar enables online retail
According to a shopping preferences study conducted by A.T. Kearney, as many as two-thirds of shoppers go to a physical store before or after making an online purchase, writes Gensler's Jill Nickels.
| Dec 8, 2014
The year’s boldest BIM/VDC themes
High-speed rendering software, custom APIs, virtual reality tools, and BIM workflow tips were among the hottest BIM/VDC topics in 2014.
| Dec 8, 2014
AEC firms upbeat about financial results, 2015 looking rosier [exclusive BD+C survey]
The market outlook is brighter for U.S. architecture, engineering, and construction companies, with a majority of AEC firms reporting higher revenues, strong forecasts, and sound financial health, according to BD+C's annual Market Forecast Survey.
| Dec 8, 2014
The global sanitation crisis leads to 2.5 million deaths every year
When we see the incredible technology being produced by global plumbing manufacturers, it’s hard to conceive why no viable technical solution to the global sanitation issue has come forth, writes BD+C's Robert Cassidy.
| Dec 8, 2014
Moshe Safdie wants to reinvent airports with Jewel Changi Airport addition
A new addition to Singapore's Changi Airport, designed by Moshe Safdie, will feature a waterfall and extensive indoor gardens.
| Dec 6, 2014
Future workplace designs shouldn’t need to favor one generation over another, says CBRE report
A new CBRE survey finds that what Millennials expect and need from offices doesn’t vary drastically from tenured employees.