USGBC Claim Sparks Discussion on LEED Challenges

by bkrigbaum@solagroup.com








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 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 fraudulently misrepresenting 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.

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 said. “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 said. “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, Tennessee, 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, New Jersey, 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 said. “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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