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
| Sep 24, 2014
5 business lessons from a 43-year Star veteran
Mary Ed Cain was supposed to be born a boy. That was the first time she surprised everyone. The second time came on a daily basis during her 43-year career at Star Building Systems. SPONSORED CONTENT
| Sep 24, 2014
Architecture billings see continued strength, led by institutional sector
On the heels of recording its strongest pace of growth since 2007, there continues to be an increasing level of demand for design services signaled in the latest Architecture Billings Index.
| Sep 24, 2014
Frank Gehry's first building in Latin America will host grand opening on Oct. 2
Gehry's design for the Biomuseo, or Museum of Biodiversity, draws inspiration from the site's natural and cultural surroundings, including local Panamaian tin roofs.
| Sep 23, 2014
Cedars-Sinai looks to streamline trauma care with first-of-its-kind OR360 simulation space
The breakthrough simulation center features moveable walls and a modular ceiling grid that allow doctors and military personnel to easily reconfigure the shape and size of the space.
| Sep 23, 2014
Third phase of New York’s High Line redevelopment opens
The $35 million Phase 3, known as High Line at the Rail Yards, broke ground September 20, 2012, and officially opened to the public on September 21.
| Sep 23, 2014
Cloud-shaped skyscraper complex wins Shenzhen Bay Super City design competition
Forget the cubist, clinical, glass and concrete jungle of today's financial districts. Shenzhen's new plan features a complex of cloud-shaped skyscrapers connected to one another with sloping bridges.
| Sep 23, 2014
Designing with Water: Report analyzes ways coastal cities can cope with flooding
The report contains 12 case studies of cities around the world that have applied advanced flood management techniques.
| Sep 22, 2014
4 keys to effective post-occupancy evaluations
Perkins+Will's Janice Barnes covers the four steps that designers should take to create POEs that provide design direction and measure design effectiveness.
| Sep 22, 2014
Biloxi’s new Maritime and Seafood Industry Museum is like a ship in a bottle
Nine years after the Museum of Maritime and Seafood Industry in Biloxi, Miss., was damaged by Hurricane Katrina’s 30-foot tidal surge, the museum reopened its doors in a brand new, H3-designed building.
| Sep 22, 2014
Open plenum vs. dropped ceiling: The debate over life cycle cost
While suspended, lay-in ceilings have long been the norm in commercial design, the open-plenum ceiling has become trendy and economical, particularly in office and retail environments. However, calculating the tradeoffs between cost and performance can be tricky.