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
| Nov 25, 2014
Behnisch Architekten unveils design for energy-positive building in Boston
The multi-use building for Artists For Humanity that is slated to be the largest energy positive commercial building in New England.
| Nov 25, 2014
Study: 85% of employees dissatisfied with their office environment
A vast majority of office workers feel open floor plans cause multiple distractions and that more private spaces are needed in today's offices, according to a new study by Steelcase and research firm IPSOS.
| Nov 25, 2014
Emerging design and operation strategies for the ambulatory team in transition
As healthcare systems shift their care models to be more responsive to patient-centered care, ambulatory care teams need to be positioned to operate efficiently in their everyday work environments, write CannonDesign Health Practice leaders Tonia Burnette and Mike Pukszta.
| Nov 24, 2014
Midsize construction firms see a brighter business horizon
Uncertainty about government spending clouds an otherwise positive economic outlook among 59 middle market construction firms polled recently by GE Capital.
| Nov 24, 2014
Adrian Smith + Gordon Gill-designed crystalline tower breaks ground in southwestern China
Fitted with an LED façade, the 468-meter Greenland Tower Chengdu will act as a light sculpture for the city of Chengdu.
| Nov 21, 2014
Rental apartment construction soars to 27-year high: WSJ report
The multifamily sector is now outpacing the peak construction rate in the previous housing cycle, in 2006, according to the WSJ.
| Nov 21, 2014
Nonresidential Construction Index rises in fourth quarter
There are a number of reasons for optimism among respondents of FMI's quarterly Nonresidential Construction Index survey, including healthier backlogs and low inflation.
| Nov 21, 2014
NCARB: Number of architects in U.S. grows 1.6% in 2014, surpasses 107,500
The architecture profession continues to grow along with a gradually recovering economy, based on the results of the 2014 Survey of Architectural Registration Boards, conducted by the National Council of Architectural Registration Boards.
| Nov 20, 2014
Lean Led Design: How Building Teams can cut costs, reduce waste in healthcare construction projects
Healthcare organizations are under extreme pressure to reduce costs, writes CBRE Healthcare's Lora Schwartz. Tools like Lean Led Design are helping them cope.
| Nov 19, 2014
The evolution of airport design and construction [infographic]
Safety, consumer demand, and the new economics of flight are three of the major factors shaping how airlines and airport officials are approaching the need for upgrades and renovations, writes Skanska USA's MacAdam Glinn.