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
| Apr 26, 2013
Apple scales back Campus 2 plans to reduce price tag
Apple will delay the construction of a secondary research and development building on its "spaceship" campus in an attempt to drive down the cost of developing its new headquarters.
| Apr 26, 2013
Solving the parking dilemma in U.S. cities
ArchDaily's Rory Stott yesterday posted an interesting exploration of progressive parking strategies being employed by cities and designers. The lack of curbside and lot parking exacerbates traffic congestion, discourages visitors, and leads to increased vehicles emissions.
| Apr 26, 2013
Decaying city: Exhibit demonstrates the fragility of the man-made world
Theater set designer Johanna Mårtensson built a model cityscape out of bread only to watch it decay.
| Apr 25, 2013
Colorado State University, DLR Group team to study 12 high-performance schools
DLR Group and the Institute for the Built Environment at Colorado State University have collaborated on a research project to evaluate the effect of green school design on occupants and long-term building performance.
| Apr 24, 2013
More positive momentum for Architecture Billings Index
All regions and building sectors continue to report positive business conditions
| Apr 24, 2013
North Carolina bill would ban green rating systems that put state lumber industry at disadvantage
North Carolina lawmakers have introduced state legislation that would restrict the use of national green building rating programs, including LEED, on public projects.
| Apr 24, 2013
Los Angeles may add cool roofs to its building code
Los Angeles Mayor Antonio Villaraigosa wants cool roofs added to the city’s building code. He is also asking the Department of Water and Power (LADWP) to create incentives that make it financially attractive for homeowners to install cool roofs.
| Apr 23, 2013
Building material innovation: Concrete cloth simplifies difficult pours
Milliken recently debuted a flexible fabric that allows for concrete installations on slopes, in water, and in other hard to reach places—without the need for molds or mixing.
| Apr 23, 2013
Architects to MoMA: Don't destroy Williams/Tsien project
Richard Meier, Thom Mayne, Steven Holl, Hugh Hardy and Robert A.M. Stern are among the prominent architects who on Monday called for the Museum of Modern Art to reconsider its decision to demolish the former home of the American Folk Art Museum.
| Apr 22, 2013
Top 10 green building projects for 2013 [slideshow]
The AIA's Committee on the Environment selected its top ten examples of sustainable architecture and green design solutions that protect and enhance the environment.
