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
| May 7, 2013
First look: Adrian Smith + Gordon Gill skyscraper designed to 'confuse the wind'
The 400-meter-high, 116-story Imperial Tower in Mumbai will feature a slender, rounded form optimized to withstand the area's strong wind currents.
| May 6, 2013
SAFTI FIRST announces 3D Autodesk Revit models for fire rated wall, window, and door systems
SAFTI FIRST, leading USA-manufacturer of fire rated glass and faming systems, is proud to announce that Autodesk Revit models are now available for its fire rated walls, window and door systems via www.safti.com and Autodesk Seek.
| May 6, 2013
7 major multifamily residential projects in the works
A $140 million redevelopment of a landmark, 45-building apartment complex in Los Angeles is among the nation's significant multifamily developments under way.
| May 3, 2013
5 common failures in paints and coatings
As experienced designers, contractors, and owners know, most paint and coating problems are correctable, but some are especially stubborn to address. Here is a partial compendium of typical failure modes and methods for addressing the problem.
| May 3, 2013
'LEED for all GSA buildings,' says GSA Green Building Advisory Committee
The Green Building Advisory Committee established by the General Services Administration, officially recommended to GSA that the LEED green building certification system be used for all GSA buildings as the best measure of building efficiency.
| May 3, 2013
SMPS Foundation accepting applications for Ron Garikes Student Scholarship
The SMPS Foundation is now accepting scholarship applications from eligible students majoring in marketing, communications, or public relations who are planning a career in professional services marketing in the architecture, engineering, and construction industry.
| May 3, 2013
Another edible city? Artist creates model city with chewing gum
French artist Jeremy Laffon pieced together a model city with thousands of sticks of mint-green chewing gum.
| May 2, 2013
First look: UC-Davis art museum by SO-IL and Bohlin Cywinski Jackson
The University of California, Davis has selected emerging New York-based practice SO-IL to design a new campus’ art museum, which is envisioned to be a “regional center of experimentation, participation and learning.”
| May 2, 2013
A snapshot of the world's amazing construction feats (in one flashy infographic)
From the Great Pyramids of Giza to the U.S. Interstate Highway System, this infographic outlines interesting facts about some of the world's most notable construction projects.
