It may have been lost a bit in the recent discussion over LEED 2009 decertification, but last month Marsh released a new report that solicited feedback from construction industry executives on the risks that they perceive as arising out of green design and construction across ten risk categories: brand and competitive edge or reputation, project consultants and subcontractors, education, finance, building performance, green building regulations, return on investment, standards of care and legal, supply chain and technology. To obtain the feedback, Marsh convened four forums in in Washington D.C., San Francisco, Chicago, and New York City in late 2008 and early 2009, which were attended by a total of 55 industry executives. While the executive summary to the report, which is titled “Green Building: Assessing the Risks, Feedback from the Construction Industry,” acknowledges that its findings “might be characterized as anecdotal,” I do think that the report is important to consider in the context of the types of risks that stakeholders identified as the most salient.
The top five risk categories that were identified during the forums were finance, standards of care and legal, building performance, project consultants and subcontractors, and green building regulations; each of these fell either in the “likely” or “moderate” risk profiles (finance, standards of care, and performance were the top three, all of which were in the “likely” profile, which translated into “likely to occur at least once every three years.”). The lowest risk category? Brand and competitive edge or reputation (which is interesting given the new product from AIG that provides coverage (in the form of a lump sum payment and counseling services) for loss of reputation if a green building project fails to achieve third-party certification).
Within each of the top five risk categories, Marsh asked participants in each forum both to identify specific risks and challenges and propose some general solutions. Many of those risks will ring familiar to you, particularly in the standard of care/legal category. However, there were several that I thought were worth repeating, particularly because we have not mentioned them explicitly here at GRELJ previously.
First, the danger that “more aggressive” design may lead to an increased risk of errors or omissions in contract documents. I think that this risk ties in with many designers having little experience with green building technologies, yet specifying certain materials or systems without performing sufficient due diligence; we’ve already heard of claims arising out of this scenario. Next, potential claims for attractive nuisance from low-rise green roofs that are easily accessible- particularly on schools- as well as graywater collection ponds. While we’ve noted insurer attitudes about green roofs generally from the perspective of potential arson, the idea of the green roof or collection pond serving as an attractive nuisance is troubling (though a quick Westlaw search did not identify any reported decisions involving a green roof in this context), and this Marsh report is the first place that we’ve seen the concept identified. Finally, the report mentions that executives were concerned about the possibility that contractors may be assuming liability for professional design services, yet not procuring professional liability insurance coverage for those efforts. This scenario may arise where a contractor performs LEED certification or building commissioning services but is not obligated by contract (or statute) to procure such coverage. Note our recent article here at GRELJ discussing aspects of this important issue.
I thought it was also interesting to note that the top categories as identified by participants in each city varied widely. In New York City, for example, the top two risk categories were performance and standard of care/legal; in Washington, D.C. they were financial and education. With respect to New York City, it was also interesting to note that the panel considered regulatory risks as low-risk; given the Mayor’s Greener Greater Buildings Plan and the pending mandate for energy efficiency benchmarking and retrofits for every building in the city, this will likely change. Moreover, I have written extensively, both here at GRELJ and over at gbNYC, about how critical it is for project teams to survey and understand the regulatory requirements that may apply to a particular project. In that respect, I was a bit disappointed to note that the report’s composite risk map ranked regulatory risks as “unlikely.” As we noted in the context of the Shaw Development litigation, the issue in that particular lawsuit was the parameters of an applicable green building tax incentive program. As the Marsh report points out, most insurance policies will exclude claims based on non-compliance with controlling laws, codes, or regulations. Although claims- at least in negligence- for failure to comply with controlling green building regulations may be asserted as negligence per se, the idea that insurance may not be available for allegations that a designer (or a contractor) failed to comply with those regulations should be considered seriously by green building project stakeholders.
Finally, I think it is also important to quickly point out that insurance risks will change drastically under the LEED 2009 system if the specter of decertification proves as sinister in practice as many have suggested.
The report is a quick read and sums up many of the key issues that the green building legal community has been wrestling with over the past two years rather succinctly. A link to the registration page on the Marsh website from which you can download the report is set forth below.