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
| Jan 28, 2014
2014 predictions for skyscraper construction: More twisting towers, mega-tall projects, and 'superslim' designs
Experts from the Council on Tall Buildings and Urban Habitat release their 2014 construction forecast for the worldwide high-rise industry.
| Jan 28, 2014
16 awe-inspiring interior designs from around the world [slideshow]
The International Interior Design Association released the winners of its 4th Annual Global Excellence Awards. Here's a recap of the winning projects.
| Jan 28, 2014
Big Ten Conference opens swanky HQ and museum [slideshow]
The new mixed-use headquarters includes a museum, broadcast studios, conference facilities, office spaces, and, oh yeah, a Brazilian steakhouse.
| Jan 27, 2014
A climber's dream: Rock climbing hall planned near Iran's highest peak
Forget the rock climbing wall. A developer in Iran is building a rock climbing hall. That's right, an entire building dedicated to the sport, with more than 48,000 sf of program space.
| Jan 24, 2014
First look: Foster + Partners' new home for Yale School of Management [slideshow]
Edward P. Evans Hall, the new home of the Yale School of Management, has opened for business. The 242,000-sf facility was designed by Foster + Partners, with Gruzen Samton as architect of record.
| Jan 24, 2014
Reed Expansion Index predicts widespread economic improvement for the year
Reed's December Expansion Index stood at 1.48, indicating overall construction in the United States is expected to grow over the next 12 months.
| Jan 24, 2014
Urban Land Institute, Enterprise outline issues in rental housing shortage: Report
Bending the Cost Curve: Solutions to Expand the Supply of Affordable Rentals outlines factors that impede the development of affordable rental housing – causing the supply in many markets to fall far short of the demand.
| Jan 24, 2014
Structural concrete requirements under revision: ACI 318 standard
The American Concrete Institute (ACI), an organization whose mission is to develop and disseminate consensus-based knowledge on concrete and its uses, is finalizing a completely reorganized ACI 318-14: Building Code Requirements for Structural Concrete.
| Jan 23, 2014
Adrian Smith + Gordon Gill-designed Federation of Korean Industries tower opens in Seoul [slideshow]
The 50-story tower features a unique, angled building-integrated photovoltaic (BIPV) exterior designed to maximize the amount of energy collected.
| Jan 23, 2014
Think you can recognize a metal building from the outside?
What looks like brick, stucco or wood on the outside could actually be a metal building. Metal is no longer easily detectable. It’s gotten sneakier visually. And a great example of that is the Madison Square retail center in Norman, Okla.