With the continuous shift in the construction industry toward green and sustainable design, becoming green-accredited is a great marketing tool for any business. However, programs such as LEED (Leadership in Energy and Environmental Design) and green design accreditations such as GRP (Green Roof Professionals) are changing the standard of care for design professionals.
Before “going green” was the trend, the traditional standard of care for architects and engineers was based on industry practices (often stated as “that degree of skill and care ordinarily exercised by engineers and architects practicing in the same area at the same time”). Now, with green and sustainable design accreditations, design professionals who become accredited are assuming a higher standard of care. This can become an insurance coverage issue under professional liability policies because some policies exclude instances where the insured has assumed a higher standard of care than the customary standard of care expressed in AIA contract forms and similar design contracts.
Errors and omissions policies vary significantly from carrier to carrier, so it is necessary to review such policies prior to finalizing standard-of-care language in a design professional contract for a green or sustainable design project. Be sure that your E&O policy will provide coverage before dipping your toes into nontraditional ventures that impose different standards of care. Green design is still in its infancy. Until LEED expertise and other green accreditations become the industry standard, coverage under professional liability polices may not automatically expand to meet the higher standards of care that come with green design.
Along with an insurance contract, a design contract with a client needs careful review. Make sure that there is clear language in the contract stating the traditional standard of care, as well as language that distinguishes the traditional design/construction tasks from green design/construction tasks, to minimize the possibility of a heightened “green” standard of care applying to the entire contract.
Another “green” tip for the cautious yet environmentally conscious design professional: avoid clauses in design contracts that promise client satisfaction or warrant green products. Many green materials have not been on the market long enough for the industry to appreciate or anticipate design problems or defects to come.
Green and sustainable designs will dominate construction development and design at some future point. We are in a time of transition. With these simple additions to green and sustainable design contracts, professionals may minimize the “green” flowing to claimants who bring E&O claims arising from environmentally enhanced designs.