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
| Nov 9, 2011
Sika Sarnafil Roof Recycling Program recognized by Society of Plastics Engineers
Program leads the industry in recovering and recycling roofing membrane into new roofing products.
| Nov 9, 2011
American Standard Brands joins the Hospitality Sustainable Purchasing Consortium
American Standard will collaborate with other organizations to build an industry-wide sustainability performance index.
| Nov 8, 2011
Transforming a landmark coastal resort
Originally built in 1973, the building had received several alterations over the years but the progressive deterioration caused by the harsh salt water environment had never been addressed.
| Nov 8, 2011
WEB EXCLUSIVE: Moisture-related failures in agglomerated floor tiles
Agglomerated tiles offer an appealing appearance similar to natural stone at a lower cost. To achieve successful installations, manufacturers should provide design data for moisture-related dimensional changes, specifiers should require in-situ moisture testing similar to those used for other flooring materials, and the industry should develop standards for fabrication and installation of agglomerated tiles.
| Nov 8, 2011
$11 million business incubator Florida Innovation Hub at the University of Florida completed by Charles Perry Partners, Inc.
The facility houses the UF Office of Technology Licensing, UF Tech Connect, other entities, and more than 30 startup technology tenants.
| Nov 8, 2011
Designer joins Holabird & Root
Clifton has been awarded numerous awards throughout her career, including two AIA Chicago Design Excellence Awards.
| Nov 4, 2011
Mortenson Construction builds its fifth wind facility In Illinois
Shady Oaks Wind Farm is under construction near Compton, Ill.
| Nov 4, 2011
CSI and ICC Evaluation Service agree to reference GreenFormat in ICC-ES Environmental Reports?
ICC-ES currently references CSI's MasterFormat and other formats in all of its evaluation reports. The MOU will add GreenFormat references.
| Nov 4, 2011
McCarthy completes construction of South Region High School No. 2 in Los Angeles
Despite rain delays and scope changes, the $96.7 million high school was completed nearly two-months ahead of schedule.
| Nov 4, 2011
Two Thornton Tomasetti projects win NCSEA’s 2011 Excellence in Structural Engineering Awards
Altra Sede Regione Lombardia and Bank of Oklahoma Center both recognized.