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 4, 2011
New Years resolutions for architects, urban planners, and real estate developers
Roger K. Lewis, an architect and a professor emeritus of architecture at the University of Maryland, writes in the Washington Post about New Years resolutions he proposes for anyone involved in influencing buildings and cities. Among his proposals: recycle and reuse aging or obsolete buildings instead of demolishing them; amend or eliminate out-of-date, obstructive, and overly complex zoning ordinances; and make all city and suburban streets safe for cyclists and pedestrians.
| Jan 4, 2011
An official bargain, White House loses $79 million in property value
One of the most famous office buildings in the world—and the official the residence of the President of the United States—is now worth only $251.6 million. At the top of the housing boom, the 132-room complex was valued at $331.5 million (still sounds like a bargain), according to Zillow, the online real estate marketplace. That reflects a decline in property value of about 24%.
| Jan 4, 2011
Luxury hotel planned for Palace of Versailles
Want to spend the night at the Palace of Versailles? The Hotel du Grand Controle, a 1680s mansion built on palace grounds for the king's treasurer and vacant since the French Revolution, will soon be turned into a luxury hotel. Versailles is partnering with Belgian hotel company Ivy International to restore the dilapidated estate into a 23-room luxury hotel. Guests can live like a king or queen for a while—and keep their heads.
| Jan 4, 2011
Grubb & Ellis predicts commercial real estate recovery
Grubb & Ellis Company, a leading real estate services and investment firm, released its 2011 Real Estate Forecast, which foresees the start of a slow recovery in the leasing market for all property types in the coming year.
| Jan 4, 2011
Furniture Sustainability Standard - Approved by ANSI and Released for Distribution
BIFMA International recently announced formal American National Standards Institute (ANSI) approval and release of the ANSI/BIFMA e3-2010 Furniture Sustainability Standard. The e3 standard represents a structured methodology to evaluate the "sustainable" attributes of furniture products and constitutes the technical criteria of the level product certification program.
| Dec 28, 2010
Project of the Week: Community college for next-gen Homeland Security personnel
The College of DuPage, Glen Ellyn, Ill., began work on the Homeland Security Education Center, which will prepare future emergency personnel to tackle terrorist attacks and disasters. The $25 million, 61,100-sf building’s centerpiece will be an immersive interior street lab for urban response simulations.
| Dec 20, 2010
Architect Adrian D. Smith on zero-energy cities, new technologies, and high density.
Adrian D. Smith, FAIA, RIBA, is co-founder (with Gordon Gill) of Adrian Smith + Gordon Gill Architecture, Chicago. Previously, he was a design partner in the Chicago office of Skidmore, Owings & Merrill (1980-2003) and a consulting design partner from 2004 to 2006. His landmark structures include the Jin Mao Tower (Shanghai), Rowes Wharf (Boston), and Burj Khalifa (Dubai, U.A.E.), the world’s tallest structure. He recently collaborated with Gordon Gill to design the world’s first net-zero-energy skyscraper, Pearl River Tower, now nearing completion in Guangzhou, China. This account is based on his recent remarks at the Illinois Institute of Technology.
| Dec 17, 2010
BIM Tools Enhance Project Value
The Building Team for a renovation project at Georgia Tech uses BIM and 3D design tools to solve a complex millwork problem.
| Dec 17, 2010
Historic Rhode Island hotel reborn with modern amenities
The iconic Ocean House resort in Watch Hill, R.I., had to be torn down in 2005 when systemic deficiencies made restoration unfeasible. Centerbrook Architects and Planners, Centerbrook, Conn., designed a new version of the hotel, working with preservation societies to save or recreate favorite elements of the original building, and incorporating them into the contemporary structure. The new resort has 49 guest rooms and 23 residences, plus banquet halls, a corporate boardroom, a private clubroom, a spa and fitness center, an indoor lap pool, a bar, and the obligatory international croquet court. Dimeo Construction, Providence, R.I., was the construction manager.
