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
| Jun 19, 2013
New York City considers new construction standards for hospitals, multifamily buildings
Mayor Michael Bloomberg’s administration has proposed new building codes for hospitals and multifamily dwellings in New York City to help them be more resilient in the event of severe weather resulting from climate change.
| Jun 18, 2013
Report: HVAC occupancy sensors could slash building energy demand by 18%
Researchers at the DOE's Pacific Northwest National Laboratory conclude that significant energy savings can be achieved by varying ventilation levels based on the number of people in a given space.
| Jun 18, 2013
Turner report: Activity in urban markets driving construction cost increases
Turner Construction Company announced that the Second Quarter 2013 Turner Building Cost Index – which measures costs in the non-residential building construction market in the United States – has increased to a value of 859. This reflects a 1.18% increase from the First Quarter 2013 and 4.00% yearly increase from the Second Quarter 2012.
| Jun 17, 2013
First look: Austin to get first high-rise since 2003
Developer Cousins Properties broke ground on the 29-story Colorado Tower in downtown Austin, Texas, the city's first high-rise building since Cousins' completed the Frost Bank Tower a decade ago.
| Jun 17, 2013
DOE launches database on energy performance of 60,000 buildings
The Energy Department today launched a new Buildings Performance Database, the largest free, publicly available database of residential and commercial building energy performance information.
| Jun 14, 2013
First look: Callebaut's eye-popping Möbius building for Taichung arts center
French design firm Vincent Callebaut Architectures has released renderings of "Swallow's Nest," an entry in a design competition for a new cultural center, fine arts museum, and public library in Taichung City, Taiwan. The building, based on a Möbius ring, swirls around a central "Endless Patio."
| Jun 14, 2013
Purdue, industry partners test light steel framing for seismic safety
A partnership of leading earthquake engineering researchers from top U.S. and Canadian universities and design professionals from the steel industry have begun the final phase of a three-year project to increase the seismic safety of buildings that use lightweight cold-formed steel for their primary beams and columns.
| Jun 13, 2013
7 great places that represent excellence in environmental design
An adaptive reuse to create LEED Platinum offices, a park that honors veterans, and a grand national plaza are among the seven projects named winners of the 2013 Great Places Awards. The Environmental Design and Research Association recognize professional and scholarly excellence in environmental design, with special attention paid to the relationship between physical form and human activity or experience.
| Jun 13, 2013
WorkingBuildings acquires Specialty Operations Solutions
The WorkingBuildings Companies, a leading provider of comprehensive Owner-based solutions for the built environment, announces the acquisition of Specialty Operations Solutions (SOS), a national provider of research and laboratory services.
| Jun 13, 2013
Health Product Declaration Collaborative names Knott as Executive Director
John L. Knott Jr. has been named as the Health Product Declaration Collaborative’s (www.hpdcollaborative.org) first Executive Director following a national search. The Health Product Declaration Collaborative (HPDC) is a customer-led standards-setting organization committed to the continuous improvement of the building industry’s environmental and health performance, through transparency and innovation in the building product supply chain.