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
MFPRO+ New Projects | Aug 10, 2023
Atlanta’s Old Fourth Ward gets a 21-story, 162-unit multifamily residential building
East of downtown Atlanta, a new residential building called Signal House will provide the city with 162 units ranging from one to three bedrooms. Located on the Atlanta BeltLine, a former railway corridor, the 21-story building is part of the latest phase of Ponce City Market, a onetime Sears building and now a mixed-use complex.
Office Buildings | Aug 10, 2023
Bjarke Ingels Group and Skanska to deliver 1550 on the Green, one of the most sustainable buildings in Texas
In downtown Houston, Skanska USA’s 1550 on the Green, a 28-story, 375,000-sf office tower, aims to be one of Texas’ most sustainable buildings. The $225 million project has deployed various sustainable building materials, such as less carbon-intensive cement, to target 60% reduced embodied carbon.
Senior Living Design | Aug 7, 2023
Putting 9 senior living market trends into perspective
Brad Perkins, FAIA, a veteran of more than four decades in the planning and design of senior living communities, looks at where the market is heading in the immediate future.
University Buildings | Aug 7, 2023
Eight-story Vancouver Community College building dedicated to clean energy, electric vehicle education
The Centre for Clean Energy and Automotive Innovation, to be designed by Stantec, will house classrooms, labs, a library and learning center, an Indigenous gathering space, administrative offices, and multiple collaborative learning spaces.
Green | Aug 7, 2023
Rooftop photovoltaic panels credited with propelling solar energy output to record high
Solar provided a record-high 7.3% of U.S. electrical generation in May, “driven in large part by growth in ‘estimated’ small-scale (e.g., rooftop) solar PV whose output increased by 25.6% and accounted for nearly a third (31.9%) of total solar production,” according to a report by the U.S. Energy Information Administration.
Resiliency | Aug 7, 2023
Creative ways cities are seeking to beat urban heat gain
As temperatures in many areas hit record highs this summer, cities around the world are turning to creative solutions to cope with the heat. Here are several creative ways cities are seeking to beat urban heat gain.
Government Buildings | Aug 7, 2023
Nearly $1 billion earmarked for energy efficiency upgrades to federal buildings
The U.S. General Services Administration (GSA) recently announced plans to use $975 million in Inflation Reduction Act funding for energy efficiency and clean energy upgrades to federal buildings across the country. The investment will impact about 40 million sf, or about 20% of GSA’s federal buildings portfolio.
Government Buildings | Aug 2, 2023
A historic courthouse in Charlotte is updated and expanded by Robert A.M. Stern Architects
Robert A.M. Stern Architects’ design retains the original building’s look and presence.
Hotel Facilities | Aug 2, 2023
Top 5 markets for hotel construction
According to the United States Construction Pipeline Trend Report by Lodging Econometrics (LE) for Q2 2023, the five markets with the largest hotel construction pipelines are Dallas with a record-high 184 projects/21,501 rooms, Atlanta with 141 projects/17,993 rooms, Phoenix with 119 projects/16,107 rooms, Nashville with 116 projects/15,346 rooms, and Los Angeles with 112 projects/17,797 rooms.
Market Data | Aug 1, 2023
Nonresidential construction spending increases slightly in June
National nonresidential construction spending increased 0.1% in June, according to an Associated Builders and Contractors analysis of data published today by the U.S. Census Bureau. Spending is up 18% over the past 12 months. On a seasonally adjusted annualized basis, nonresidential spending totaled $1.07 trillion in June.