Schinnerer: LEED AP = Higher Standard of Care

A colleague just forwarded me the Victor O. Schinnerer & Company, Inc.'s Guidelines for Improving Practice. This insurance company frequently provides educational services for its clients and others, and the "LEED Accredited Professional Program Changes Risk Profiles" article on page four made the following statement in no uncertain terms:

"Members of the upgraded LEED AP+ program now will face a higher standard of care for their services."

This is the first instance where I've seen the higher standard of care argument placed with no qualifiers such as 'maybe' or 'will soon face', which is particularly troubling considering it's coming from a company who could potential profit from such a statement being true. I'm not a lawyer, but I always understood that standard of care was determined by industry norms and generally worked out in court, not by declaration.

Conflict of Interest?

Mo' Money, Mo' Money, Mo' Money

It seems like by publishing such material, Schinnerer is providing evidence in a future case that a lawyer could point to, reinforcing their own statement and need for the insurance. Oh no... I just realized by the act of writing this blog post I may be feeding the vicious cycle. Please forgive me future APs in lawsuits!

Much less troubling and more useful is the article on page five that features sample contract language for "When Owner Wants the Design to Meet Specific Sustainability Criteria" that essentially says "Hey Mr. Owner, I'm going to design you a kick ass building, but it may require me to need to use new materials that may not have a long track record. We'll let you know about that if it happens, but if you run into trouble down the road it ain't our fault."

The second contract issue it helps you resolve is "When Owner Wants Third-Party Certification of Sustainability". That goes something like "Hey Mr. Owner, I hear you want LEED, but I'm not the only one involved in making that happen. We'll take care of it as we can, but you can't sue me for not getting that platinum plaque you asked for unless it's my fault alone."

I'd recommend checking reading these articles on your own, and would appreciate some comments about all this from you lawyerly types (Chris? Stephen? Others?).


Chris Cheatham said...

You keep finding all of the good stuff! Nice find.

Schinnerer definitely knows what they are talking about when it comes to green building liability issues. Frank Musica works for Schinnerer and he has documented over 22 green building claims in an AIA presentation. Also, Schinnerer issues A/E E&O policies so they wouldn't necessarily benefit from this type of litigation. If anything, they would want to avoid it.

With that said, Schinnerer recognizes that the standard of care has or will likely shift with the new LEED AP credentialing system. Now that practitioners are being segregated from non-practitioners, LEED AP will mean more. A higher standard of care may result.

By the way, great post on the CIR issue. I highlighted it on my blog today.


Mark Rabkin said...

Amen Brother! This is very intriguing as it pertains to the marketability of trade contractors having a LEED AP+ on staff and the unique risks faced amid claims of expertise by credentialing.

Tim Hughes said...

The piece that strikes me, as you, is that CNA is saying "will" not "may". I bet a lot of architects are going to cringe when this article pops up in cross-examination of expert witnesses at trial discussing why LEED AP's in fact, do have an elevated standard of care.

Tim Hughes

Anonymous said...

Interesting post. One aspect of the "higher standard of care" issue that needs to be kept in mind is that under many professional liability policies there is an exclusion for instances where the insured has assumed a higher standard of care than the traditional prevailing standard of care expressed in the AIA contract template (i.e. that degree of skill and care ordinarily exercised by architects practicing in the same area at the same time).
If and when LEED expertise and detailed knowledge of green building rating systems such as LEED becomes the "norm", then there would be no coverage issue. Until that time, there is an E and O coverage issue potentially present. Since E and O policies, unlike GL policies, vary significantly from carrier to carrier (i.e., insured to insured), it is necessary to review such policies prior to finalizing standard of care language in a design contract.
Mike Gibbons