Legal claims arising from gulfs between sustainability promises and the performance of certified green buildings are mounting—and so are warnings to architecture, engineering, planning, and environmental consulting firms, ZweigWhite, source of business-management services, reports in the Feb. 28 issue of The Zweig Letter, its weekly journal.
In February, McLean, Va.-based insurance broker and risk-management firm Ames & Gough urged design professionals to consider carefully contractual language regarding “standard of care” and “scope of services” for projects pursuing certification under the U.S. Green Building Council’s LEED rating systems.
According to ZweigWhite, in the absence of contract language to the contrary, design professionals normally are held to a standard of care commensurate with that of professionals providing the same services to a geographically similar community. With a green-building project, however: “An owner may seek to hire a design firm specifically because of its sustainable-design expertise,” Manhattan-based construction and real-estate attorney Stephen Del Percio told The Zweig Letter. “Accordingly, it may attempt to hold the design professional to a higher standard of care than that which prevails in the industry.”
Contractual wording stipulating that certain levels of LEED certification be attained and promising specific percentages of energy reduction can be affected by owner and contractor decisions beyond a design professional’s control, Dan Knise, president and chief executive officer/partner of Ames & Gough, said.
Performance-based language such as, “This design will achieve a LEED Gold rating,” or, “This design will reduce operating costs by 50 percent,” in a standard-of-care provision may be problematic if the insurer believes the design professional has provided the equivalent of a warranty, ZweigWhite said.
Because professional-liability policies generally exclude coverage for claims arising from the breach of a warranty, owners and design professionals should review language in construction agreements for provisions that could be construed by an insurer as the equivalent of a warranty, Del Percio said.
For more on this topic, read Stephen J. Vamosi's December 2010 Engineering Green Buildings column, "Who Will Be Held Liable for Green Designs?"