MCF

Broadly referred to as “green” construction, the field of environmentally focused design and construction, which once seemed like a fad, has become mainstream. Many federal, state, and local initiatives either mandate or incentivize green building, and the green building market continues to grow, despite declining commercial and residential construction. Just as construction claims and disputes often accompany conventional construction projects, it is only a matter of time before green construction claims and disputes accompany green construction projects.¹ Green building litigation — or LEEDigation, as some commentators have coined it — could likely become prevalent in the near future because of the unique and unknown risks that accompany building green and the rising number of inexperienced entrants into the field.²

This article focuses on the hidden legal risks that owners, designers, and contractors should consider before undertaking a green project. This article also presumes that the reader possesses a modicum of familiarity with green building certification and the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) rating system, which is currently the most popular green building rating system.

Hidden Legal Risks of Green Building
Green construction projects are different from conventional construction projects. Green building embodies a greater latent potential for unrealized expectations, misunderstandings, physical or economic failure, and litigation. Some of these risks are discussed in this article.

Owner Risks and Unfulfilled Expectations
When undertaking a green project, an owner likely expects to achieve green building certification. Failure to achieve the certification goal is an obvious risk, and the economic impact could be substantial. Potential damages to the owner can include, but are not limited to, the loss of a tenant or sale, loss of government incentives and tax credits, increased design and construction costs, rescinded donations on endowed projects, penalties on public projects with green mandates, increased energy and water costs over the life of the building, and diminished asset value.

Consequential damages arising from a breach of contract are an additional risk that may accompany a failure to achieve the certification goal. Hadley v. Baxendale, 9 Exch. 341 (1854), a leading and longstanding English contract law case, set forth the basic rule for determining the scope of consequential damages: A party is liable for all losses within reasonable contemplation of the contracting parties at the time of the contract. But green building is novel. Nobody knows the extent to which consequential damages might be awarded because case law has yet to define the losses that would likely be within reasonable contemplation of the parties to a green project. Confusion arises when green-related regulatory activity at the federal, state, and local levels is moving at a rapid pace, making it difficult to interpret regulations with certainty; insurance coverage for claims arising out of green design is largely unsettled; and insufficient data exists to determine whether green buildings are performing at the desired higher level of anticipated efficiency.³

Although a mutual waiver of consequential damages clause is commonly included within design and construction contracts, an owner could be placing himself or herself at an unacceptable level of risk by agreeing to this term.⁴ An owner, therefore, should expressly define as liquidated damages any recoverable damages under the contract in the presence of a mutual waiver of consequential damages on a green project.

The first known LEED-related lawsuit involved lost tax credits.⁵ In Southern Builders v. Shaw Development, No.: 19-C-07-011405, Circuit Court, Somerset Co., Md. (2008), the general contractor agreed to build a $7.5 million, 23-unit condominium project that was designed to obtain LEED Silver certification. The owner applied and qualified for a state income tax credit equal to 8 percent of the project cost. When the contractor failed to deliver a LEED Silver building and a certificate of occupancy within the time required under Maryland’s green building tax credit program, the owner forfeited more than $600,000 in tax credits.⁶ The owner alleged claims of negligence and breach of contract against the builder. While the case appears to have settled without a trial, it illuminates two key components of green building litigation: The parties failed to recognize the risks implicated by the applicable regulatory scheme, and the parties agreed to an imprecise contract.⁷

A prudent owner understands that the contract is the primary means for dictating a contractor’s green building obligations. The parties in Shaw Development entered an AIA A101-1997 “Standard Form of Agreement between Owner and Contractor” as their general contract. This agreement does not include green building requirements. A separate project manual incorporated additional requirements and made specific reference to green building certification: The project is “designed to comply with a Silver Certification Level” according to the LEED rating system.⁸

The contract documents simply lacked clarity. While the project manual stated that the project was designed to comply with LEED Silver certification, it did not expressly obligate the contractor to secure formal certification from the USGBC. Instead, the contractor was only responsible for building according to the drawings and specifications. Thus, the contractor could be liable if it failed to build in accordance with the design, which, thereafter, resulted in a failure to achieve LEED certification.⁹ In sum, an owner should clearly describe a contractor’s responsibilities as they relate to the construction of a green building project.¹⁰

The contract documents should expressly assign LEED certification responsibilities to the appropriate party or parties. At a minimum, specific contractual terms should address responsibility for registering the project, compiling and maintaining documentation to obtain LEED credits, applying for certification, responding to USGBC requests for additional information or clarification, and prosecuting the appeal process in the event that the initial request for certification is denied.¹¹ Likewise, a cautious owner may consider adjusting retainage terms to coincide with the issuance of LEED certification. Ensuring the continued involvement of the architect and contractor may prove critical because entitlement to certain LEED points can only be established after construction completion and commencement of facility operations.12

With the possibility of such large economic damages for unfulfilled expectations as discussed above, building owners can be expected to demand guaranteed LEED certification. That request can conflict with the design professional’s and contractor’s needs to manage their own risks; after all, owner changes, contractor actions, design decisions, and post-occupancy usage all affect various LEED credits and are not within the sole control of a single party. Although the interests of the owner, designer, and contractor are often harmonious, understanding the risks faced by all project participants is critical to success on a green project.

Architect Risks
Many architects, who would otherwise adhere to standard operating procedures and build risk management processes into their designs and contracts, may forget those basics when they begin to passionately discuss green design.¹³ A successful green architect will set reasonable contract requirements, manage the client’s expectations, and control project scope.

1) Guaranteeing LEED Certification — Most design professionals protect themselves from claims of negligence by maintaining errors and omissions (E&O) insurance. In general, if an architect negligently performs on a LEED project, and, as a result of that negligence the project does not achieve LEED certification, the architect’s E&O policy should provide protection. But there are clear exceptions. By agreeing to “warrant” or “guarantee” LEED certification, the architect may unwittingly remove its design from E&O insurance coverage. E&O professional liability policies usually contain a policy exclusion for contractually assumed liability. Typical language, for example, might state that the “policy does not apply to warranties and guarantees and any claim(s) based upon or arising out of express warranties and guarantees.” Thus, an architect who guarantees LEED certification likely assumes an uninsured risk.

2) Guiding Documents of The America Institute of Architects — The American Institute of Architects (AIA) currently offers two guiding documents that address the LEED certification process. Document B214 – 2007 adds LEED certification services, and Document B211 – 2007 appends building commissioning services to the architect’s duties. Although these documents do seem to assist the parties in the process of successfully completing a LEED-certified project, it is risky for the architect to rely solely upon them.

Documents B214 and B211 may inadvertently expose an architect to additional risk because the services therein may not be covered under the typical E&O insurance contract. E&O policies commonly insure against claims that allege a professional has caused damage by providing, or failing to provide, services in accordance with all applicable laws and regulations, or by providing a service below the standard of care for their profession. It is possible that LEED certification and commissioning services may not be considered traditional professional services, and, therefore, may not be covered by E&O insurance. An architect who mismanages the LEED certification process or the building commissioning process and fails to meet LEED certification goals might be left without E&O coverage for that mistake. Although an architect’s general liability insurance may provide the necessary coverage, a cautious architect will confirm this before undertaking the additional services set forth in documents B214 and B211.

To further protect themselves against such problems, a design professional might consider adding a risk-limiting clause to AIA documents B214 and B211. Such a clause could seek to limit the amount of damages recoverable from the architect to the amount of compensation paid to the architect for services rendered.¹⁴

The risks inherent to building environmentally friendly buildings apply not only to those seeking LEED certification. The AIA released a new owner-architect agreement — Document B101 — that applies to all buildings, not just those seeking LEED certification: This replaces the B141 and B151 agreements. During the schematic design phase, Document B101 requires that the architect and owner must discuss and consider the feasibility of incorporating “environmentally responsible” design.¹⁵ Again, with this additional affirmative obligation comes additional risk.

An architect that ignores the mandates of Document B101 could face financial consequences. A failure to discuss “alternative approaches to design and construction” with the owner, including the “feasibility of incorporating environmentally responsible design approaches,” could be deemed a breach of contract. As a preventative measure, architects should carefully document the required discussions, whether or not the owner decides to employ a green design. If the owner chooses not to implement a green design, the architect should seek written confirmation of the owner’s decision.

3) LEED: The Architect’s New Standard of Care? — Accurately defining a “reasonable architect” within the context of a green project can be perplexing. The “reasonable architect” standard traditionally scrutinizes other architects in the same or similar circumstances and analyzes what would reasonably have been done on a project of the same size, scope, and complexity. Defining this standard has become more challenging: Should the standard be based upon other LEED-accredited professionals, or should it be based upon architects with a certain level of experience designing green?¹⁶

In 2007, the AIA added Canon VI to its code of ethics and professional conduct, which suggests that members should promote sustainable design and development principles throughout their profession. The combination of an ethical standard that urges AIA members to “aspire” to sustainable design and an AIA form contract document that requires the consideration of “environmentally responsible design” may have shifted the architect’s standard of care to include these concerns. Failure to meet that standard would then result in professional negligence. While it may be years before these requirements are addressed through litigation, architects should be aware of this possible new paradigm.

4) LEED Submittal Templates — The LEED certification process itself could prove to be a latent source of risk to the architect. The process is completed entirely online through the submission of LEED submittal templates. The templates are completed by project participants attesting that the specific requirements for a point or credit have been fulfilled. The LEED submittal template requires the signer to verify the accuracy of the information provided. By signing the corresponding LEED submittal template, the architect may have just guaranteed the veracity of that particular green building component — a guarantee which, in all likelihood, would not be covered by E&O insurance to the extent it triggers the warranty and guarantee exclusion in an architect’s E&O policy.

All project participants have an interest in ensuring that the architect is adequately insured. To protect that interest, the parties should agree in writing that the architect’s signature on a LEED submittal template is solely for the satisfaction of the LEED rating system and does not constitute any warranty or guarantee on behalf of the signatory.

5) Design Changes — Design changes during construction may result in significant disputes. Green building projects comprise specific interrelated practices and strategies. Removing or modifying one strategy may very likely have a direct effect on another strategy. A common example involves a building’s energy performance.¹⁷ A project may achieve LEED points by way of increased levels of energy performance above the baseline energy level. A building that uses less energy to heat, cool, and power building components will achieve more points. An architect may call for a specific window that provides a desired level of light. If the window type is later changed, the amount of light transmitted into the building will likely change as well, resulting in increased heating or cooling needs. The entire energy performance of the building could be affected, which may cost the project expected LEED points.

A single change, whether it results from a design error or an owner preference, could have a ripple effect on other design aspects.¹⁸ If the architect is unable to promptly recognize the interrelated effects between strategies, certification may be lost. Claims may then be asserted by interested parties. A careful architect should require that the owner contractually assume the risk of a lower level of certification — or lost certification — when changes are made.

Contractor Risks
Although design changes, LEED-related guarantees, and potential liability for consequential damages are all risks that the contractor should be aware of, a number of additional contractor-specific issues may manifest themselves when building green.

1) Confusion Between Performance Specifications and Design Specifications — In most construction projects, the owner provides plans and specifications to the contractor, and the contractor is required to build the project accordingly. In United States v. Spearin, 248 U.S. 132 (1918), the court decided: “[I]f the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.” This proposition has become known as the Spearin doctrine. The doctrine, however, applies only to design specifications — specifications that provide the contractor clear instructions on how to perform the work and what materials to provide (e.g., “install a 20,000 BTU air conditioner manufactured by Carrier”). It does not apply to performance specifications — specifications which simply set forth an objective or standard, but leave the means of attaining that end to the contractor (e.g., “install an air conditioning system capable of maintaining an indoor temperature of 72°F when the outside dry bulb temperature is 93°F, and the outside mean coincident wet bulb temperature is 77°F”).

This can be specifically problematic on a green project. For example, a design specification might direct the contractor to use a specific adhesive and sealant or only one of the adhesives and sealants approved by the Green Seal Standard for Commercial Adhesives GS-36. If the contractor uses the specified products, and it turns out that they fail to satisfy LEED requirements, the contractor is not held responsible for that failure. Conversely, a performance specification on a green project might direct that the contractor use adhesives and sealants sufficient for the project to obtain the credit for Indoor Environmental Quality 4.1: Low-emitting Materials — Adhesives and Sealants. The contractor is free to use the appropriate adhesives and sealants on the project to meet this goal. If, however, the adhesives and sealants selected by the contractor are not appropriate to meet this LEED credit point, the contractor ultimately bears the responsibility.

Thus, on a green project it is important for contracts to clearly specify, and for contractors to clearly understand, whether the contractor’s duties are driven by design specifications or performance specifications. A likely scenario has the contractor being provided with a detailed set of plans and specifications to follow, but also requiring that the contractor be responsible for achieving a certain level of LEED certification. This constitutes a mixing of design and performance specifications. Without a clear designation or clarifying language in the contract, a contractor may unwittingly accept responsibility for the design of the project — and any resulting failure to achieve LEED certification.

2) Guaranteeing LEED Certification — Like the architect, the contractor should be wary of guaranteeing LEED certification. Practically speaking, a contractor should generally not guarantee any outcome over which the contractor has no control. Specifically, most LEED certification credits are design credits, and the contractor typically has little to no control over design.

Understandably, many owners will want the risk for some part of LEED certification shifted to the contractor. While some commentators recommend avoiding guarantees, a precise contract can appropriately define the guarantee and mitigate risk.¹⁹ A contractor should demand a narrowly drawn liquidated damages provision pertaining only to contractor-related credits in an attempt to equitably shift that risk. A liquidated amount due for each LEED construction credit that the contractor fails to obtain will protect the owner’s interests without unduly burdening the contractor.

3) Potential Delays — For contractors particularly, green building components exist that may potentially cause project delays.²⁰ Some green products are in high demand and low supply, which results in longer procurement times. Furthermore, there are processes implemented and materials used on green projects that may add time to the overall construction period. By way of example, materials low in volatile organic compounds generally require additional time to cure, such as the paints and coatings recommended for use under Indoor Environmental Quality Credit 4.2: Low-emitting Materials — Paints and Coatings. Also, in order to achieve Indoor Environmental Quality Credit 3.2: Construction Indoor Air Quality Management Plan — Before Occupancy, the building must be flushed out by supplying a total air volume of 14,000 cubic feet of outdoor air per square foot of floor area while maintaining specific temperature and humidity levels. This requirement must take place after all finishes have been installed and the building has been completely cleaned. If a contractor neglects to include these green activities in the project schedule, critical path delays may result. Once a contractor becomes familiar with these activities, much of the risk can be mitigated through proper input into the critical path schedule and management of that schedule.

4) Green Performance Bonds — A prudent green contractor must also keep abreast of any local bonding initiatives. For example, performance bonds are being used to ensure compliance with green mandates in the District of Columbia. The Green Building Act of 2006 requires that all new commercial buildings be LEED-certified.²¹ If LEED certification is not achieved within two years after the certificate of occupancy is issued for the project, all or part of the bond is forfeited to the District.²²

The act does not specifically designate which party — the building owner, the contractor, or the architect — is to furnish the performance bond. To avoid disputes, the party responsible for posting the bond should be clearly spelled out in the contract before construction begins. While the District of Columbia is currently the only known jurisdiction that requires a LEED performance bond, parties should be aware of the potential for such bonds in their respective jurisdictions.

Risks to All Parties
Each of the previously mentioned risks could, directly or indirectly, adversely affect any and all of a green building’s participants. A comprehensive approach to identifying the hidden risks of green building requires identification of those risks that may concurrently affect more than one participant.

1) Outdated Contractual Agreements — Green building participants must be particularly diligent when using standard industry contracts because revisions have not kept pace with the green revolution. While the AIA has taken a necessary step toward greening the industry’s contract documents through documents B101, B211, and B214, hidden problems still lurk within many of the standard contracts utilized by owners, architects, and contractors.

The standard form contracts used on conventional projects provide a latent source of disputes. A green project participant should pay particular attention to contracts incorporating the AIA A201-2007 General Conditions. The definition of “work,” for example, does not account for the requirement that contractors, subcontractors, and suppliers provide essential documentation needed to establish entitlement to various LEED credits. Such documentation must be developed and maintained as a project progresses because it may be difficult, if not impossible, to compile the necessary documentation at project closeout. LEED credit points for construction waste management, recycled content, and regional materials would be lost without proper documentation.

Likewise, the standard definition of “substantial completion” does not account for the special nature of green projects. A project reaches substantial completion when an owner can occupy or utilize the work for its intended purpose. If the building flush out under Indoor Environmental Quality Credit 3.2 is incorporated into the project, a contractor who schedules in accordance with the traditional definition of substantial completion might be surprised to learn that additional time — and perhaps liquidated damages — accompanies the required building flush out.

Other standard contractual provisions may prove problematic within the green building context. First, payment provisions may not address the necessity of making payment contingent upon receiving certification documentation. The standard contract language of AIA Document A201-2007 §9.3.1 requires that payment applications be “supported by such data substantiating the contractor’s right to payment as the owner or architect may require.” This language is insufficient. Additional contract language should be included that requires submission of LEED certification documents as a condition precedent to payment, and language should be included that requires the contractor to insert the same condition in all subcontracts and purchase orders.

Second, imprecise contractual language could cause additional problems on green projects. For example, language that requires a contractor to comply with federal, state, and local laws could impose green performance obligations depending on the jurisdiction.²³ There may be additional assumed costs and risks in the current standard contract language. For this reason, all interested parties should thoroughly review the standard provisions and amend them accordingly to specifically address green project concerns.

2) Product Choices — Whether chosen by the owner, architect, or contractor, project participants must select materials and building systems with heightened scrutiny on green projects. The responsible participant should confirm product availability and production capacity with the manufacturer in order to avoid project delays. The expected level of performance should also be verified: Material and system decisions should be rationally based on technical data from the manufacturer, not promotional materials. Test construction or “mock-ups” may prove effective when attempting to evaluate new products and systems. Communication among project participants is key; the owner should be informed of any risks uncovered during the selection process.

3) Third-party Claims — All involved parties must be careful not to expressly or impliedly warrant the ultimate performance of a green building. Parties who promise a healthier building, a certain level of energy savings or increased employee productivity potentially submit themselves to additional risks. For example, misleading or overstated claims of unverifiable benefits or performance may lead to claims of misrepresentation or fraud in the inducement from an end user who materially relies on such statements.²⁴ Marketing materials intended to tout a party’s previous accomplishments may also unknowingly give rise to implied warranties or potential claims of negligent misrepresentation when the project fails to satisfy expectations created by those materials.²⁵

4) Negotiating Federal, State, and Municipal Regulations — Owners, architects, and contractors must be cognizant not only of the special risks inherent to green projects, but they also must keep apprised of new and proposed green building codes and regulations. The list of governmental entities adopting green building initiatives — and enacting green building codes and regulations — continues to grow.²⁶ These codes and regulations can significantly impact construction projects by forcing parties to incorporate green strategies at the risk of noncompliance.

As the incentives, regulations, and standards for green projects multiply, the likelihood of overlap and conflict increases. Legislators eager to show their support for the green movement may inadvertently mandate unreachable standards or unknowingly overstep the bounds of their authority. For example, Albuquerque, New Mexico’s Energy Conservation Code recently increased the federally mandated energy standards for HVAC equipment required on all new and retrofitted properties.²⁷ Trade associations representing the affected contractors sued the city in an effort to stop the code from taking effect.²⁸ The trade associations obtained a preliminary injunction by successfully arguing that federal law preempted the challenged provisions of the city code.²⁹ While granting the injunction, Judge Vazquez lauded the city’s green goals, but mildly chastised the code drafters for being “unaware of the long-standing federal statutes” that expressly preempt state regulation of certain HVAC and water heating products.30 Thus, green building participants should continuously monitor state and local regulations to identify conflicts and resolve them in advance, so as not to have their projects or budgets interrupted by litigation.

Conclusion
Green building demand has grown five-fold in the past four years.³¹ Whether fueled by profit or virtue, the green market continues to expand. The federal government recently renewed its green commitment by allocating tens of billions of stimulus dollars to green building through the American Recovery and Reinvestment Act of 2009. A capital infusion of this magnitude will undoubtedly increase the risk of litigation, because government entities lacking prior green experience may demand unrealistic expectations from green projects. Participation by inexperienced architects, engineers, contractors, subcontractors, and suppliers may exacerbate that risk.

Whether a project is publicly or privately funded, all project participants will be better equipped to build green if they approach the project with a clear and mutual understanding of scope, goals, and limitations. Litigation can best be avoided by drafting precise contracts that clearly set forth the parties’ expectations. Communication and comprehensive documentation are key. A prudent green project team will thoroughly analyze the codes and regulations applicable to the project’s jurisdiction before entering the fray.³² As green building matures, it is likely that the risk involved in “building green” will be just another risk undertaken by informed construction professionals.³³

¹ See Todd R. Metz & Christopher W. Cheatham, As Green Building Moves Forward, Claims and Disputes Will Follow, 57 Virginia Lawyer 56 (Oct. 2008), http://www.vsb.org/docs/valawyermagazine/vl1008_green.pdf.

² Christopher W. Cheatham, LEEDigation, Green Building Law Update (Apr. 15, 2009) (originating the term “LEEDigation” for use while describing green building litigation), http://www.greenbuildinglawupdate.com/2009/04/articles/legal-developments/leedigation/.

³ See Stephen Del Percio, USGBC: Legal Risk in Building Green Is “New Wine in Old Bottles,” Green Real Estate L. J. (Apr. 22, 2009), http://www.greenrealestatelaw.com/2009/04/usgbc-paper-legal-risk-in-building-green/.

⁴ See AIA Document A201 – 2007, General Conditions of the Contract for Construction, §15.1.6.

⁵ See Southern Builders v. Shaw Development, No.: 19-C-07-011405, Circuit Court, Somerset Co., Md. (2008).

⁶ See id., citing counter-complaint at ¶25(b); MD Code Ann., Tax, 10-722(c)(1) (2008).

⁷ Christopher W. Cheatham, Southern Builders v. Shaw Development: Green Building Damages, Green Building Law Update (Oct. 6, 2008), http://www.greenbuildinglawupdate.com/2008/10/articles/legal-developments/southern-builders-v-shaw-development-green-building-damages/.

⁸ Southern Builders, No.: 19-C-07-011405, Circuit Court, Somerset Co., Md. (2008), citing counter-complaint at ¶24.

⁹ Christopher W. Cheatham, Southern Builders v. Shaw Development: The Most Important Part!, Green Building Law Update (Oct. 1, 2008), http://www.greenbuildinglawupdate.com/2008/10/articles/legal-developments/southern-builders-v-shaw-development-the-most-important-part/.

¹⁰ Id.

¹¹ Ronald S. Cusano, Speech, When “Green” Turns to “Red” and LEEDs to a Summons and Complaint: Potential Liability on Green Projects (New Orleans, LA, Apr. 16, 2009) (copy of presentation paper on file with the American Bar Association Forum on the Construction Industry).

¹² Id.

¹³ Dick Dahl, Green Construction Lawsuits Are on the Rise, Finance and Commerce Daily Newspaper, Mar. 12, 2009 (quoting Frank Musica of Victor O. Schinnerer & Co.).

¹⁴ Notably, some jurisdictions have deemed such limitation on liability clauses void.

¹⁵ See AIA Document B101 – 2007, Standard Form of Agreement Between Owner and Architect.

¹⁶ USGBC.org, The Legal Risk in “Building Green”: New Wine in Old Bottles? A USGBC Panel Discussion at 2, http://www.usgbcny.org/assets/documents/white-paper_legal-risk-in-building-green.pdf.

¹⁷ See Metz & Cheatham, As Green Building Moves Forward, Claims and Disputes Will Follow, 57 Virginia Lawyer at 58 (Oct. 2008).

¹⁸ Id.

¹⁹ USGBC.org, The Legal Risk in “Building Green”: New Wine in Old Bottles? A USGBC Panel Discussion at 5, http://www.usgbcny.org/assets/documents/white-paper_legal-risk-in-building-green.pdf.

²⁰ Id. at 4.

²¹ D.C. Code §6-1451-05 (2008).

²² D.C. Code §6-1451-05(g)-(h) (2008).

²³ Rob Remington, Speech, When “Green” Turns to “Red” and LEEDs to a Summons and Complaint: Potential Liability on Green Projects (New Orleans, LA, April 16, 2009) (copy of presentation paper on file with the American Bar Association Forum on the Construction Industry).

²⁴ See Susannah Frame, Investigators: Green School Claims Oversold, King 5 News, Nov. 13, 2009, http://www.king5.com/news/investigators/Investigators-Green-school-claims-oversold.html.

²⁵ See State Farm Ins. Co. v. Nu Prime Roll-A-Way of Miami, Inc., 557 So. 2d 107, 108 (Fla. 3d D.C.A. 1990) (a seller’s representations in newspaper advertisements, catalogues, and circulars, that hurricane shutters, when fully closed prevented break-ins, may become part of a contract of sale and constitute an express warranty); Interco Inc. v. Randustrial Corp., 533 S.W.2d 257, 261 (Mo. Ct. App. 1976) (a statement in a sales catalogue that a floor-covering would absorb “considerable flex” created an express warranty).

²⁶ USBGC.org, LEED Initiatives in Government and Schools, http://www.usgbc.org/DisplayPage.aspx?CMSPageID=1852.

²⁷ Air Conditioning, Heating and Refrigeration Inst. v. City of Albuquerque, 2008 WL 5586316 (D.N.M. 2008).

²⁸ Air Conditioning, Heating and Refrigeration Inst., et al. v. City of Albuquerque, Civ. No. 08-633 MV/RLP (D.N.M. July 3, 2008).

²⁹ Air Conditioning, Heating and Refrigeration Inst. v. City of Albuquerque, 2008 WL 5586316 at 12.

³⁰ Id.

³¹ Norbert Young, PowerPoint Presentation, Financial Crisis…Implications for Global Construction (Amelia Island, FL, Feb. 20, 2009) (copy of presentation on file with McGraw-Hill Construction).

³² Metz & Cheatham, As Green Building Moves Forward, Claims and Disputes Will Follow, 57 Virginia Lawyer at 59 (Oct. 2008).

³³ USGBC.org, The Legal Risk in “Building Green”: New Wine in Old Bottles? A USGBC Panel Discussion at 7, http://www.usgbcny.org/assets/documents/white-paper_legal-risk-in-building-green.pdf.

Maura K. Anderson is an associate in the Ft. Lauderdale office of Smith, Currie & Hancock, LLP. She was one of the first attorneys to become a LEED accredited professional by the U.S. Green Building Council and is a frequent lecturer on the legal risks inherent in green construction. She obtained her J.D. from Emory University in 1996.

James K. Bidgood, Jr., is a partner in the Atlanta law firm of Smith, Currie & Hancock and a member of the firm’s construction litigation and government contracts department. He received his law degree (with distinction) from Emory University in 1983.

Eugene J. Heady is a partner in Smith Currie’s Atlanta office. He has significant background and experience in the construction industry. He graduated in 1996, with honors, from Texas Tech University School of Law where he served as the editor-in-chief of the Texas Tech Law Review and as a staff writer and an editor for the Texas Tech Legal Research Board.

The authors thank G. Fritz Hain, LEED A.P., of Smith, Currie & Hancock LLP for his contribution to this work.

This column is submitted on behalf of the Real Property, Probate and Trust Law Section, John B. Neukamm, chair, and William P. Sklar and Richard R. Gans, editors.

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