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Building Code Update: Energy Efficiency Design & Litigation Risk

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For the AEC industry in California, 2020 will be a year of change. As of January 1, the 2019 California Building Standards Code (Title 24) is in effect for all new construction and renovation projects.

The changes to Title 24 demonstrate how much the green building movement has influenced the industry, as California marches towards the ultimate goal of Zero-Net Energy (ZNE). This includes the evolution of energy efficiency codes that require tighter wall assemblies utilizing continuous components to reduce the movement of air, moisture and temperature differentials. While these changes directly impact architectural and engineering designs, building material selections, and construction methods, this code will most likely have a critical influence on future construction litigation.

In late-2018, I had the opportunity to participate on a panel at the CLM Construction Conference on this subject, along with John D. Marino, Esq., of Manning & Kass, Ellrod, Ramirez, Trester, LLP; Eric J. Miersma, Esq., of Balestreri, Potoki & Holmes; and Jeffrey Chen of Axis Insurance.

Below are some key takeaways from that panel, which was entitled “Energy Efficiency, Green Buildings and Sustainable Construction: Emerging Litigation Trends for Design Professionals.

California Code Compliance Challenge

Over the last 10 years, architects and engineers have been challenged with creating solutions to comply with increasingly stringent codes, such as those for mechanical ventilation efficiency and continuous exterior insulation and air barriers. This has had a number of implications, including:

  • The growing market of high-performance building envelope products to evaluate.
  • Thoroughness of details necessary to convey continuity of the exterior assembly at the various transitions between planes and components.
  • The critical role variations in climate zones play.
  • The importance of understanding the building science of air, vapor and moisture movement through a wall.
  • The lack of data for some of the new green products and design systems for in-use compatibility, reliability or durability. Others have no known ASTM standard for testing or adaptability.
  • The risk of relying on product manufacturer’s published details, as some published details are incorrect.

To help achieve code compliance and mitigate risk, architects are increasingly looking for guidance from energy code consultants, building envelope consultants and product reps, as well as seeking design-assist collaboration from contractors. For large complex projects, contractors are often at the forefront of new code-driven developments impacting building envelope systems, as they bring hands-on experience with applying and assembling the systems. All the parties the architect relies on for guidance must be vigilant about training, field-testing and familiarization with new manufactured products.

Quality control measures are increasingly common, implemented as a choice of individual design practices, as dictated by building codes in some jurisdictions, or as an owner-driven requirement. These measures often include construction document design peer review and the use of third-party QA consultants for on-site observation, verification, certification and building commissioning.

Insurance and Legal Trends

Concurrent with the Title 24 update is the evolution of insurance coverage, product liability, contracts and more recently, design-assist liability. Architects are increasingly pushing for the team contractors to share liability by insisting on Professional Liability added coverage for the contractors.

The creation of the insurance wrap policy allowed condominium developers to retain their subcontractors who were otherwise unable to obtain insurance coverage. Unfortunately, when construction related claims against the developer arose, developers found themselves unable to point to their subs for settlement coverage.

Those outside the wrap policy (i.e., architects and engineers) became a much greater target for contributing insurance money toward settlement.

One of the most notable case rulings of the past decade to directly affect architect’s standard-of-care was Beacon Residential Community Association v. Skidmore, Owings and Merrill, LLP (2014). The 595-unit residential litigation case started with a claim that solar heat gain from window glazing resulted in uninhabitable dwelling spaces. (Longtime readers may recall that Xpera Group’s late vice president, Michael Burgess, was involved in developing a repair solution as an expert witness.) While building users have always been part of the equation with LEED, this case interpreted the user as part of the architect’s duty of care.

After court appeals and a change in focus, the court ruled that the architect’s duty of care expanded beyond the traditional contractual relationship with the owner (developer) to also include the future homeowners.

Connecting the dots between these trends and California’s code compliance challenges, architects will inevitably find themselves targeted for future construction litigation, especially when it comes to energy efficiency matters.

Green Building Goals & Certifications

Since LEED’s debut, plenty of other green building certifications have been introduced, including the Zero Energy Certification from the International Living Future Institute (ILFI). Unlike some other green building certifications, ILFI’s Zero-Net Energy design practices involve concepts and strategies that go beyond standard energy codes.

These tend to take a specialty level of awareness and stakeholder collaboration for large complex projects.

Part of the process in seeking certifications such as Zero Energy Certification is having the building’s energy use monitored, measured and verified during the first one or two years of operation. This brings potential liabilities, as well as important opportunities to manage potential risk:

  • Achieving green building certifications that go beyond current building codes could mean that the design carries an added risk to the professional for practicing at a higher standard of care.
  • There is a potential disconnect between construction achievement and certification achievement in terms of expectations, responsibilities, contract language and insurance coverage.
  • Contractors generally warranty their work for 12 months after certificate of occupancy. With certification monitoring activities, there could be added scrutiny of the building’s performance during this period.
  • After architects have completed their basic design services, ongoing communication or involvement through additional services might be prudent to uphold their design intent.
  • Energy consultant contracts transition from an agreement with the design team to contracting directly with the owner. Insurance coverage issues would therefore need to be addressed, including responsibility for changes to the original construction. In some respects, the energy consultant is now the quarterback for the design team. Their ethics and good judgment play an important role when it comes to discovering performance deficiencies.
  • There are opportunities to mitigate the risk of construction defect claims through proactive involvement during the certification phase.

How Architects Can Better Manage Litigation Risks

As previously mentioned, architects can look to both energy and building envelope consultants for guidance in making sure their complex project designs will operate as intended and that the owner project requirements are met.

  • Building Envelope Consultants
    • Involve the consultant early during the design development phase to mitigate the cost and out-of-sequence time to re-design. If early involvement is not anticipated during proposals with the building owner, consider contract provisions for out-of-sequence work.
    • The best practice is to hire one qualified building envelope consultant for both above- and below-grade systems, including design assist, plan review and building envelope observations.
    • Before retaining your consultant, confirm any cross-over conflicts between their responsibility for observing field tests under your agreement in comparison to the contractor’s scope to conduct the field tests. Consider provisions and acknowledgement in the construction document project manual.
  • Energy Consultants
    • As energy codes become stricter, energy consultants are being retained along with the architect for entitlement process services.
    • When determining property potentials and seeking city council approvals for large projects, early involvement of energy modeling during schematics provides predictable and quantifiable data as guidance for maintaining the design development within the parameters of the approval requirements.
    • For basic services, if early involvement is not anticipated during proposals with the building owner, consider contract provisions for out-of-sequence work.
    • Confirm the appropriate credentials and certificates of the consulting firm. Realize they are not likely governed under a licensing board in their state and may not stamp their work product. They practice under a different professional business code than architects.
    • Make sure you understand the terms, conditions and caveats in their proposals and work product.
    • A competent mechanical engineer will recognize the benefit of involving an energy consultant for energy modeling studies during schematic mechanical designs. Even though your engineer is skilled at calculating the appropriate system, the energy consultant’s models can offer quantifiable alternatives and comparisons for complex architectural designs and mechanical designs.

With California’s latest energy efficiency code requirements come both challenges and opportunities. As an early proponent of green building practices and as the latest member of Xpera’s Consulting Services team, I look forward to guiding clients through these issues to ensure project success.


Bruce Bergman, AIA, is a forensic architect and member of Xpera’s Construction Consulting and Real Estate Advisory Group. He can be reached at bbergman@xperagroup.com.

 


Topics: Architecture, Construction Forensics, California, Green Building, Energy, Title 24, Sustainability, Law, Publications

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