Now that green design is a fundamental part of the practices and marketing strategies of many architecture and engineering firms, liability issues concerning green building performance are starting to surface.
Recently the U.S. Green Building Council (USGBC) and its founders were named as defendants in a class action lawsuit filed in federal court. Filed on behalf of mechanical systems designer Henry Gifford, owner of Gifford Fuel Saving, the suit claims that USGBC is fraudulently misleading consumers and misrepresenting the energy performance of buildings certified under its LEED rating systems. The suit goes on to claim that LEED is harming the environment by leading consumers away from using proven energy-saving strategies. However, legal observers are dismissing the case as potentially bogus.
Shari Shapiro, an attorney with Obermayer Rebmann Maxwell & Hippel in Philadelphia, and a LEED-accredited professional, questions the legal structure chosen by the plaintiffs.
“They styled the case as a class action lawsuit and the class they are seeking to certify is very broad,” she says. “It includes owners of LEED-certified buildings, building and design professionals who have obtained LEED accreditation, an unspecified category of taxpayers, and an unspecified category of consumers.”
If the case is not certified as a class action suit, Henry Gifford would be left as the only plaintiff.
“He’s going to have a very hard time proving that whatever the fraud is, that it harmed him personally,” Shapiro says. “He’s not a LEED-accredited professional; he does not own any buildings that have been LEED certified. The only professional harm is that he lost out on business that he would have gotten had he gotten accreditation.”
It would be hard to demonstrate that the fraud he alleges caused him to lose out on opportunities, she says.
“From a legal perspective, I don’t think this case is going anywhere.”
The case does, however, open the door to more, and potentially better, claims, Shapiro said.
Green or sustainable design claims are already prompting firms to reevaluate how they talk about green projects in contracts and client conversations. Timothy Burrow, an attorney at Burrow & Cravens, P.C. in Nashville, Tenn., advises architects to include specific language in their contracts, such as: “The Architect will exercise reasonable efforts to design and specify products and/or systems that achieve energy performance expectations or LEED certification expectations that are expressly called for in this Contract, if any. The Architect does not, however, provide assurances that those performance or certification expectations will be met.”
Timothy Esler, a principal at Fenner & Esler Agency, Inc. in Oradell, N.J., said green building issues are really no different than any other type of professional liability claim from a coverage analysis standpoint.
“That is to say that so long as the ‘claim’ made against the design professional is stemming from an alleged breach in their ordinary standard of care, then there really should not be a question of coverage,” he says. “I think that the bigger concern from the professional liability carrier standpoint is ‘what are the green design/sustainable design claims going to look like?’ There just haven’t been enough yet. So it’s a fear of the unknown.”
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