If you are in green building and worried about associated risks, this may be a post you do not want to read. On September 11, the Journal Record published an illuminating, but chilling, article regarding green building litigation. The opening sentence really says it all:
As LEED projects proliferate, lawyers foresee an era of green-construction lawsuits.
The article also highlights one of the foremost experts on green building litigation, Frank Musica. Musica is a risk-management lawyer with Victor O. Schinnerer & Co. Inc., a professional liability insurance underwriter. Musica’s slideshow presentation “Don’t Let Green Design Cause Red Ink” provides over twenty actual green building claims involving architects. Musica points how green building litigation will most likely develop:
“When a developer has a problem with a project, he’s going to claim a number of things,” Musica said, “including, ‘You told me I’d get a certification, and I’m not getting it.’”
In the article, many attorneys provide great advice on how to avoid green building liability. For example, parties should not promise a “green building” but should instead provide detailed specifications that incorporate green building strategies. After the sage advice, though, the article again turns ominous:
From the plaintiff’s perspective, Murano said, it won’t be necessary to identify who’s responsible when a building doesn’t get its anticipated certification or doesn’t perform up to snuff.
“You don’t have to pick among the carnage,” he said. “You just throw everybody into the mill and say, ‘You didn’t collectively perform. You guys flesh it out. All I know is that I asked for a LEED platinum building, you said OK, and you didn’t meet that.’”
Attorneys are starting to pay attention to green building in growing numbers. GBLU will continue to review green building legal developments to keep you better informed. In the meantime, maybe you should review those green building contracts again.