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
| Jul 27, 2014
Top Data Center Construction Firms [2014 Giants 300 Report]
Holder, Turner, and DPR head Building Design+Construction's 2014 ranking of the largest data center contractors and construction management firms in the U.S.
| Jul 27, 2014
Top Data Center Engineering Firms [2014 Giants 300 Report]
Fluor, Jacobs, and Syska Hennessy top Building Design+Construction's 2014 ranking of the largest data center engineering and engineering/architecture firms in the U.S.
| Jul 27, 2014
Top Data Center Architecture Firms [2014 Giants 300 Report]
Gensler, Corgan, and HDR head Building Design+Construction's 2014 ranking of the largest data center architecture and architecture/engineering firms in the U.S.
| Jul 25, 2014
Grocery stores choosing Green Globes for building sustainability certification
The Green Building Initiative (GBI) has announced a wave of Green Globes certifications for new grocery stores, including New Seasons Markets, Whole Foods, Price Chopper, Aldi’s, Harris Teeter, Wegmans, and Publix.
| Jul 24, 2014
MIT researchers explore how to make wood composite-like blocks of bamboo
The concept behind the research is to slice the stalk of bamboo grass into smaller pieces to bond together and form sturdy blocks, much like conventional wood composites.
| Jul 24, 2014
Glazing options in correctional and detention facilities
Like it or not, the number of incarcerated people in the U.S. continues to rise. With that, increased security in all aspects of these facilities continues to be a priority. This is where security glazing products that allow line of sight for supervisors to observe and still maintain secure separation can play a key role. SPONSORED CONTENT
| Jul 23, 2014
Holistic care model, regulatory changes make outpatient facilities a high priority [2014 Giants 300 Report]
With the Affordable Care Act still in its infancy, Building Teams are seeing reverberations in the investment decisions of healthcare providers, including new ideas about the types of buildings they are asked to create.
| Jul 23, 2014
Meet Acquario Ceará: The giant crustacean-shaped aquarium that's causing concerns
A new aquarium on Brazil's northeastern coast is designed, engineered, constructed and financed by U.S. firms and institutions.
| Jul 23, 2014
Top Healthcare Sector Construction Firms [2014 Giants 300 Report]
Turner, McCarthy, and Skanska USA top Building Design+Construction's 2014 ranking of the largest healthcare contractors and construction management firms in the U.S.
| Jul 23, 2014
Top Healthcare Sector Engineering Firms [2014 Giants 300 Report]
AECOM, Jacobs, and URS Corp. top Building Design+Construction's 2014 ranking of the largest healthcare engineering and engineering/architecture firms in the U.S.