Sustainable Land Development Today - November/December 2008 - (Page 21)

(though not necessarily the processing of the paperwork for obtaining certification) would appear to be within the ambit of this coverage, especially in light of the American Institute of Architect’s (AIA’s) 2007 Code of Ethics & Professional Conduct which seems to establish as inherent in the architect’s duty the advocacy for, and consideration of sustainable design in all projects undertaken by an architect as follows: I CANON VI – Obligations to the Environment: Members should promote sustainable design and development principles in their professional activities. I Ethical Standard 6.1 Sustainable Design: In performing design work, Members should be environmentally responsible and advocate sustainable building and site design. I Ethical Standard 6.2 Sustainable Development: In performing professional services, Members should advocate the design, construction, and operation of sustainable buildings and communities. Furthermore, the 2007 Update to the B-101 Contract – The Schematic Design Phase Services provides: I 3.2.2 The Architect shall present its preliminary evaluation to the Owner and shall discuss with the Owner alternative approaches to design and construction of the Project, including the feasibility of incorporating environmentally responsible design approaches. The Architect shall reach an understanding with the Owner regarding the requirements for the Project.” (emphasis added). I 3.2.5.1 The Architect shall consider environmentally responsible design alternatives such as material choices and building orientation, together with other considerations based on program and aesthetics, that is consistent with the Owner’s program, schedule, and budget for Cost of the Work. If the duty to practice sustainable design is now essentially the standard of care for the design professional with all buildings, and the typical professional liability policy would afford coverage for negligence and errors and omissions in the normal course of practice, where is the issue? The issue lies not in an architect undertaking the design of a sustainable building itself, but in contracting with the owner in a manner that promises or guarantees a particular rating or certification outcome. According to Mr. Connor, “…most, if not all, professional liability policies exclude claims based upon or arising out of liability assumed by the architect under any contract unless the liability would have existed in the absence of the contract. In other words, if the liability existed in negligence and contract, then it would be covered. If the liability existed only in contract, it would not be covered.”2 Accordingly, the contractual language in the design contract could provide the insurance company with ample opportunity to determine that the architect gave the owner a guarantee or warranty that the building would achieve a particular rating and to possibly deny coverage for claims arising out of the building’s failure to obtain such rating. At the least, it is likely that the insurance carrier will issue a reservation-of-rights letter flagging the possibility of coverage denial. The next question is, could the existence of such a “warranty” result in other claims being denied by an architect’s professional liability insurance company that are not related directly to the rating? The answer, ac- cording the Mr. Connor: “…unfortunately, it depends on the contractual language and the courts will have to make the determination as sustainable development continues to proliferate and these claims begin to emerge.” This may be troubling from an owner’s perspective because he or she bargained for the assurance from the architect that the building would obtain a particular rating and may have relied on that assurance in commitments to third parties such as tenants or government agencies. However, if there is a breach, the owner may have to seek redress from a party that has no insurance coverage. In effect, the owner/developer may be left pursuing an entity that not only does not have “deep pockets,” but perhaps has no pockets at all given the relative capitalization of most architectural firms. The looming question then is what the development and design community can do to fill this void and manage their risks. There are several possible alternatives to contracting for what may be an unin- The drives acro trol Device knocks dust, mud and other ther debris of hassis whic elow the g evice virtu Circle 132 • or www.SLDTonline.com/webcard www.SLDTonline.com 21 http://www.trackoutcontrol.com http://www.trackoutcontrol.com http://www.SLDTonline.com/webcard http://www.SLDTonline.com

Table of Contents Feed for the Digital Edition of Sustainable Land Development Today - November/December 2008

Sustainable Land Development Today - November/December 2008 Contents Our Voice Editorial Board SLDT Resources The BottomLine Go Forth and Tread Lightly on the Land It’s About Name Recognition Managing Risk in the Sustainable Building Frontier Industry Spotlight Achieving Sustainable Land Development Worthy of Recognition Stormwater Wastewater Erosion Control Innovation Classifieds Advertiser Index Last Word

Sustainable Land Development Today - November/December 2008

For optimal viewing of this digital publication, please enable JavaScript and then refresh the page. If you would like to try to load the digital publication without using Flash Player detection, please click here.