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 7, 2014
Hybrid healthcare: Revamping inefficient inpatient units to revenue-producing outpatient care
It's happening at community hospitals all over America: leadership teams are looking for ways to maintain margins by managing underutilized and non-revenue producing space. GS&P's David Magner explores nontraditional healthcare models.
| Sep 7, 2014
USGBC + American Chemistry Council: Unlikely partners in green building
In this new partnership, LEED will benefit from the materials expertise of ACC and its member companies. We believe this has the potential to be transformational, writes Skanska USA's President and CEO Michael McNally.
| Sep 7, 2014
Behind the scenes of integrated project delivery — successful tools and applications
The underlying variables and tools used to manage collaboration between teams is ultimately the driving for success with IPD, writes CBRE Healthcare's Megan Donham.
| Sep 7, 2014
Ranked: Top military sector AEC firms [2014 Giants 300 Report]
Balfour Beatty, Fluor, and HDR top BD+C's rankings of the nation's largest military sector design and construction firms, as reported in the 2014 Giants 300 Report.
| Sep 5, 2014
First Look: Zaha Hadid's Grace on Coronation towers in Australia
Zaha Hadid's latest project in Australia is a complex of three, tapered residential high-rises that have expansive grounds to provide the surrounding community unobstructed views and access to the town's waterfront.
| Sep 4, 2014
Ranked: Top courthouse sector AEC firms [2014 Giants 300 Report]
Fentress Architects, Tutor Perini, and AECOM top BD+C's rankings of design and construction firms with the most revenue from courthouse facilities, as reported in the 2014 Giants 300 Report.
| Sep 4, 2014
Hospital CEOs, architects sound off on state of healthcare design
Healthcare construction will continue to feel the effects of radical changes in the delivery of care, according to healthcare leaders attending the annual Summer Leadership Summit of the American College of Healthcare Architects and the AIA Academy of Architecture for Health.
| Sep 4, 2014
Best of education design: 11 projects win AIA CAE architecture awards [slideshow]
The CAE Design Excellence Award honors educational facilities that the jury believes should serve as an example of a superb place in which to learn. Projects range from a design school in Maryland to an elementary school in Washington.
Sponsored | | Sep 4, 2014
Learning by design: Steel curtain wall system blends two school campuses
In this the new facility, middle school and high school classroom wings flank either side of the auditorium and media center. A sleek, glass-and-steel curtain wall joins them together, creating an efficient, shared space. SPONSORED CONTENT
| Sep 4, 2014
Strong industry growth could be slowed by skilled labor shortage, says Gilbane report
While construction spending for 2014 will finish the year 5.5% higher than 2013 and the unemployment rate in construction is down to 7.5%, the industry has been losing workers for more than five years, according to a new Gilbane report.