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
| Sep 8, 2022
The Twin Cities’ LGBTQ health clinic moves into a new and improved facility
For more than 50 years, Family Tree Clinic has provided reproductive and sexual health services to underserved populations—from part of an old schoolhouse, until recently.
| Sep 8, 2022
U.S. construction costs expected to rise 14% year over year by close of 2022
Coldwell Banker Richard Ellis (CBRE) is forecasting a 14.1% year-on-year increase in U.S. construction costs by the close of 2022.
Giants 400 | Sep 7, 2022
Top 110 Industrial Sector Contractors + CM Firms for 2022
Clayco, Arco Construction, Ryan Companies, and STO Building Group top the ranking of the nation's largest industrial facility sector contractors and construction management (CM) firms for 2022, as reported in Building Design+Construction's 2022 Giants 400 Report.
| Sep 7, 2022
K-8 school will help students learn by conducting expeditions in their own communities
In August, SHP, an architecture, design, and engineering firm, broke ground on the new Peck Expeditionary Learning School in Greensboro, N.C. Guilford County Schools, one of the country’s 50 largest school districts, tapped SHP based on its track record of educational design.
| Sep 6, 2022
Herbert V. Kohler, Jr. (1939-2022) An incomparable spirit
Dynamic leader and Kohler Co. Executive Chairman Herbert Vollrath Kohler, Jr. passed away on September 3, 2022, in Kohler, Wisconsin.
| Sep 6, 2022
Demand for flexible workspace reaches all-time high
Demand for flexible workspace including coworking options has never been higher, according to a survey from Yardi Kube, a space management software provider that is part of Yardi Systems.
| Sep 2, 2022
Converting office buildings to apartments is cheaper, greener than building new
Converting office buildings to apartments is cheaper and greener than tearing down old office properties and building new residential buildings.
| Sep 2, 2022
New UMass Medical School building enables expanded medical class sizes, research labs
A new nine-story, 350,000 sf biomedical research and education facility under construction at the University of Massachusetts Chan Medical School in Worcester, Mass., will accommodate larger class sizes and extensive lab space.
| Sep 1, 2022
ABC: Nonresidential Construction Spending Increases by a Modest 0.8% in July
National nonresidential construction spending increased 0.8% in July, according to an Associated Builders and Contractors analysis of data published today by the U.S. Census Bureau.
| Aug 31, 2022
A mixed-use development in Salt Lake City provides 126 micro units with mountain views
In Salt Lake City, a new 130,000-square-foot development called Mya and The Shop SLC, designed by EskewDumezRipple, combines housing with coworking space, retail, and amenities, as well as a landscaped exterior for both residents and the public.
