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 18, 2013
Top State Government Sector Architecture Firms [2013 Giants 300 Report]
Stantec, Perkins+Will, HNTB top Building Design+Construction's 2013 ranking of the largest state government sector architecture and architecture/engineering firms in the U.S.
| Jul 18, 2013
Top Federal Government Sector Construction Firms [2013 Giants 300 Report]
Clark Group, PCL, Hensel Phelps top Building Design+Construction's 2013 ranking of the largest federal government sector contractor and construction management firms in the U.S.
| Jul 18, 2013
Top Federal Government Sector Engineering Firms [2013 Giants 300 Report]
Fluor, URS, AECOM top Building Design+Construction's 2013 ranking of the largest federal government sector engineering and engineering/architecture firms in the U.S.
| Jul 18, 2013
Top Federal Government Sector Architecture Firms [2013 Giants 300 Report]
HOK, SmithGroupJJR, PageSoutherlandPage top Building Design+Construction's 2013 ranking of the largest federal government sector architecture and architecture/engineering firms in the U.S.
| Jul 18, 2013
Top Government Sector Construction Firms [2013 Giants 300 Report]
Clark Group, Turner, PCL head Building Design+Construction's 2013 ranking of the largest government sector contractors and construction management firms in the U.S.
| Jul 18, 2013
Top Government Sector Engineering Firms [2013 Giants 300 Report]
Fluor, URS, AECOM top Building Design+Construction's 2013 ranking of the largest government sector engineering and engineering/architecture firms in the U.S.
| Jul 18, 2013
Top Government Sector Architecture Firms [2013 Giants 300 Report]
Stantec, HOK, HDR top Building Design+Construction's 2013 ranking of the largest government sector architecture and architecture/engineering firms in the U.S.
| Jul 18, 2013
GSA regains stature under Tangherlini, who looks to trim its holdings, cut energy costs [2013 Giants 300 Report]
Over the past 15 months, Acting GSA Administrator Dan Tangherlini has done a creditable job of restoring the agency’s standing with Congress and the public.
| Jul 18, 2013
Do third-corridor designs actually work for healthcare environments?
A recent study of a nursing unit assessed whether the space's third corridor does what it was intended to do: reduce noise and distraction to patients and nursing staff.
| Jul 18, 2013
LEGO takes on the iconic Sydney Opera House
This September, LEGO will expand its LEGO Creator Expert series with a 2,989-brick model of the iconic Sydney Opera House.