Legal claims over sustainability promises vs. performance of certified green buildings are beginning to mount - and so are warnings to A/E/P and environmental consulting firms,The Zweig Letterreported in its Feb. 28 issue.
February, insurance broker and risk management firm Ames & Gough issued a warning
urging design professionals to consider carefully the contractual language
regarding “standard of care” and “scope of services” in addressing projects
that pursue the U.S. Green Building Council’s LEED certification.
of the most critical provisions in any contract for professional design
services relates to the standard of care under which the design professional
will be required to render its services. In the absence of contract language to
the contrary, a design professional will be held to a common law standard of
care commensurate with that of other professionals providing the same services
to a geographically similar community.
Manhattan-based construction and real estate attorneyStephen Del
Perciotold The Zweig Letter, “on a green building project, an
owner may seek to hire a design firm specifically because of its sustainable
design expertise. Accordingly, it may attempt to hold the design professional
to a higher standard of care than that which prevails in the industry. The
standard of care has shifted.
the spectrum of liability, legal challenges to green construction are making
people more careful in what they’re promising.”
wording that stipulates attaining certain levels of LEED certification
and promise of specific percentages of energy reduction “can be affected
by owner and contractor decisions, or otherwise beyond a design professional’s
control,” saidDan Knise, CEO of Ames & Gough.
language such as “this design will achieve a LEED Gold rating” or “will reduce
operating costs by 50 percent” in a standard of care provision may be
problematic if the insurer believes that the design professional has provided
the owner with the equivalent of a warranty.
Del Percio, since professional liability policies generally exclude coverage
for claims arising out of the breach of a warranty, owners and design
professionals should review language in their construction agreements for
provisions that could potentially be construed by an insurer as the equivalent
of a warranty.