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
| Jan 30, 2012
Hollister Construction Services to renovate 30 Montgomery Street in Jersey City, N.J.
Owner Onyx Equities hires firm to oversee comprehensive upgrades of office building.
| Jan 27, 2012
Caterpillar reports record sales and profit for 4Q and full-year 2011
Momentum carries into 2012 with sales and revenues outlook raised to $68 to $72 billion.
| Jan 27, 2012
Smith Seckman Reid opens two new offices
Smith Seckman Reid, Inc. (SSR), an engineering design and facility consulting firm, has opened two new offices, one in Chicago, the other in Washington, D.C.
| Jan 27, 2012
BRB Architects designs new campus center for Molloy College
Intended to be the centerpiece of the College’s transformation from a commuter college to a 24-hour learning community, the “Public Square” will support student life with spaces such as a café, lounges, study rooms, student club space, a bookstore and an art gallery.
| Jan 27, 2012
Columbia University’s New Core Laboratory aims for LEED Silver
Construction manager Sordoni Construction Co. along with the design team of Payette Architects and Vanderweil Engineers will provide design and construction services to renovate the majority of the existing Core Lab building to create the new Lamont Center for Bio-Geochemistry.
| Jan 26, 2012
World of Concrete 2012: A tinge of optimism
Cement consumption is expected to increase significantly in 2013, the first time an increase has been predicted in the past five years.
| Jan 26, 2012
Three dead, 16 missing in Rio buildings collapse
The buildings, one 20 floors high, collapsed on Wednesday night in a cloud of dust and smoke just one block away from the city's historic Municipal Theater.
| Jan 26, 2012
Siemens launches smoke detection knowledge center
New knowledge center web site demonstrates efficacy of smoke detection.
| Jan 26, 2012
Hendrick Construction completes Osso Restaurant in Charlotte
Designed by François Fossard, Osso's upscale interior includes tapered, twisted decorative columns and an elegant fireplace in the center of the lounge.