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 2, 2013
LEED v4 gets green light, will launch this fall
The U.S. Green Building Council membership has voted to adopt LEED v4, the next update to the world’s premier green building rating system.
| Jul 1, 2013
Lovejoy is new Director of Business Development, Healthcare at McCarthy
McCarthy Building Companies, Inc., one of California’s preeminent builders, announced that Jeffrey Lovejoy has joined the firm as director of business development, healthcare services. Lovejoy replaces Scott Lawrence who has moved into the role of project director, commercial services for McCarthy.
| Jul 1, 2013
Firestone Building Products Company LLC Announces Sustainability Report
Firestone Building Products Company, LLC, the leading manufacturer of superior “Roots to Rooftops” products for commercial building performance solutions, today announced the release of its 2012 Sustainability Report. The report, the first for Firestone Building Products Company, covers the fiscal 2012 year and is available for download at firestonebpco.com.
| Jul 1, 2013
LEGOLAND builds 12-foot replica of One World Trade Center
The LEGOLAND Discovery Center Westchester in Yonkers, N.Y., celebrated the completion of a LEGO replica of One World Trade Center by lighting the 12-foot-tall, 100-pound model.
| Jul 1, 2013
Report: Global construction market to reach $15 trillion by 2025
A new report released today forecasts the volume of construction output will grow by more than 70% to $15 trillion worldwide by 2025.
Sponsored | | Jun 30, 2013
Get your 'Early Bird' entry in for BD+C 30th Annual Reconstruction Awards
The deadline is for BD+C's 30th Annual Reconstruction Awards is July 19, but if you get me a draft of your entry by July 12 (earlier if possible, please!), we'll read it and give you feedback and suggestions that could help you win. We'll give you enough time to rework your entry in time to meet the deadline. We do this "Early Bird" service to help you put together the best possible entry - one that will answer any questions our distinguished jury members may come up with. However, we must emphasize that the BD+C Reconstruction Awards program is a juried competition, so there are no guarantees you'll win. We're just trying to improve your odds. Building Design+Construction is the only publication in its field to recognize the importance of reconstruction in all its forms - historic preservation, adaptive reuse, renovation, fitouts, and reconstruction with addition. And we've been doing it for 30 years. Incidentally, reconstruction accounts for 30-35% of all revenue for AEC firms, so it's a key component of the US/Canada design and construction industry. Send your draft entry to: rcassidy@sgcmail.com. And good luck!
| Jun 28, 2013
Calculating the ROI of building enclosure commissioning
A researcher at Lawrence Berkeley National Laboratory calls building enclosure commissioning “the single-most cost-effective strategy for reducing energy, costs, and greenhouse gas emissions in buildings today.”
| Jun 28, 2013
A brief history of windows in America
Historic window experts from Hoffmann Architects look back at the origin of windows in the U.S.
| Jun 28, 2013
Building owners cite BIM/VDC as 'most exciting trend' in facilities management, says Mortenson report
A recent survey of more than 60 building owners and facility management professionals by Mortenson Construction shows that BIM/VDC is top of mind among owner professionals.
| Jun 27, 2013
Thermal, solar control designs can impact cooling loads by 200%, heating loads by 30%
Underestimating thermal bridging can greatly undermine a building’s performance contributing to heating load variances of up to 30% and cooling load variances of up to 200%, says the MMM Group.