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 17, 2012
Dr. Phillips Charities Headquarters Building receives LEED Silver
The building incorporates sustainable design features, environmentally-friendly building products, energy efficient systems, and environmentally sensitive construction practices.
| Jul 16, 2012
BD+C Under 40 Leadership Summit scheduled
Attendee registration for U40 Summit II now open.
| Jul 16, 2012
Construction spending at 2 ½ year peak
Construction economist Ken Simonson says that four private nonresidential categories each posted 12-month spending increases of more than 25%: power and energy construction, 35%; hotels, 29%; educational and manufacturing, 27% apiece.
| Jul 16, 2012
Reed Construction hires new project manager
Fread is a LEED AP and received his degree from Purdue University.
| Jul 16, 2012
Business school goes for maximum vision, transparency, and safety with fire rated glass
Architects were able to create a 2-hour exit enclosure/stairwell that provided vision and maximum fire safety using fire rated glazing that seamlessly matched the look of other non-rated glazing systems.
| Jul 12, 2012
New firm RSK Avanti Partners offers market development services
Full-service consulting firm is focused on working with product manufacturers, designers, specifies and contractors in the building construction market.
| Jul 12, 2012
Chicago Public Schools names Lend Lease team as construction manager
Under this Capital Improvement Program, the Lend Lease team will be responsible for renovation and life safety work at over 100 Chicago Public Schools across the City.
| Jul 12, 2012
Cramer joins Gilbane’s NYC Business Development Team
New Business Development Manager brings over 30 years of experience to Gilbane.
| Jul 12, 2012
EE&K and Knutson Construction selected for the Interchange in Minneapolis
Design-build contract for $79.3 million transportation hub will connect transit with culture.
| Jul 11, 2012
Perkins+Will designs new home for Gateway Community College
Largest one-time funded Connecticut state project and first designed to be LEED Gold.