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
| Aug 16, 2022
Cedars-Sinai Urgent Care Clinic’s high design for urgent care
The new Cedars-Sinai Los Feliz Urgent Care Clinic in Los Angeles plays against type, offering a stylized design to what are typically mundane, utilitarian buildings.
| Aug 15, 2022
IF you build it, will they come? The problem of staff respite in healthcare facilities
Architects and designers have long argued for the value of respite spaces in healthcare facilities.
| Aug 15, 2022
Boston high-rise will be largest Passive House office building in the world
Winthrop Center, a new 691-foot tall, mixed-use tower in Boston was recently honored with the Passive House Trailblazer award.
| Aug 12, 2022
Monthly Construction Input Prices Decreased 2% in July, Up 17% From a Year Ago, Says ABC
Construction input prices decreased 1.8% in July compared to the previous month, according to an Associated Builders and Contractors analysis of U.S. Bureau of Labor Statistics’ Producer Price Index data released today.
Hotel Facilities | Aug 12, 2022
Denver builds the nation’s first carbon-positive hotel
Touted as the nation’s first carbon-positive hotel, Populus recently broke ground in downtown Denver.
| Aug 11, 2022
Report examines supposed conflict between good design and effective cost management
A report by the American Institute of Architects and the Associated General Contractors of America takes a look at the supposed conflict between good design and effective cost management, and why it causes friction between architects and contractors.
Energy Efficiency | Aug 11, 2022
Commercial Energy Efficiency: Finally “In-the-Money!”
By now, many business leaders are out in front of policymakers on prioritizing the energy transition.
High-rise Construction | Aug 11, 2022
Saudi Arabia unveils plans for a one-building city stretching over 100 miles long
Saudi Arabia recently announced plans for an ambitious urban project called The Line—a one-building city in the desert that will stretch 170 kilometers (106 miles) long and only 200 meters (656 feet) wide.
| Aug 10, 2022
U.S. needs more than four million new apartments by 2035
Roughly 4.3 million new apartments will be necessary by 2035 to meet rising demand, according to research from the National Multifamily Housing Council (NMHC) and National Apartment Association.
| Aug 10, 2022
Gresham Smith Founder, Batey M. Gresham Jr., passes at Age 88
It is with deep sadness that Gresham Smith announces the passing of Batey M. Gresham Jr., AIA—one of the firm’s founders.