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 18, 2012
Syska Hennessy re-launches Information and Communication Technology practice
The ICT practice will focus a blend of products including Information Technology, Security, Audiovisual, Building Automation, Fire Life Safety, Medical Communications and Intelligent Building Systems.
| Apr 18, 2012
Perkins+Will designs new complex for Johns Hopkins Hosptial
The Charlotte R. Bloomberg Children’s Center and the Sheikh Zayed Tower create transformative patient-centric care.
| Apr 18, 2012
BBS Architects & Engineers acquires Ward Associates
The merged companies’ on-going project portfolio valued at $220 million.
| Apr 17, 2012
Princeton Review releases “Guide to 322 Green Colleges”
The guide profiles 322 institutions of higher education in the U.S. and Canada that demonstrate notable commitments to sustainability in their academic offerings, campus infrastructure, activities and career preparation.
| Apr 17, 2012
FMI report examines federal construction trends
Given the rapid transformations occurring in the federal construction sector, FMI examines the key forces accelerating these changes, as well as their effect on the industry.
| Apr 17, 2012
Freese and Nichols awarded Malcolm Baldridge National Quality Award
Freese and Nichols is the only engineering and architecture firm to ever receive this recognition.
| Apr 17, 2012
Miramar College police substation in San Diego receives LEED Platinum
The police substation is the first higher education facility in San Diego County to achieve LEED Platinum Certification, the highest rating possible.
| Apr 17, 2012
Alberici receives 2012 ASA General Contractor of the Year award
Alberici has been honored by the ASA eight times in the award’s nineteen-year history--more than any other general contractor in its class.
| Apr 16, 2012
Freeland promoted to vice president at Heery International
Recently named to Building Design+Construction’s 40 Under 40 Class of 2012.
| Apr 16, 2012
University of Michigan study seeks to create efficient building design
The result, the researchers say, could be technologies capable of cutting the carbon footprint created by the huge power demands buildings place on the nation’s electrical grid.
