Q: Our firm is being asked to look into adding more aspects of green construction into our design. One concern we have is how we can assure ourselves that the quality we specify regarding our green design will end up in the final product? Any suggestions?

A: To have appropriate assurances that a quality result will be achieved, several things should be included in the contracts. One of the more important things is to require the appropriate documentation that can be referenced that demonstrates that quality was achieved. The documentation in and of itself is not enough; it is critically important that qualified personnel are assigned to your project to ensure that sustainable goals are reached. While many claim to have expertise in green and sustainable design and construction, this expertise is not often deep given recent developments and lack of time in which sustainable projects have been constructed. This is primarily a new area of design and construction, and few professionals have a great depth of experience. Therefore, it is critical that your construction documents address the qualifications of the personnel who will be overseeing the process to ensure that your green and sustainable goals are achieved.

Another concern of the owner is to make sure that the products and equipment incorporated into their project will perform as represented and intended. It is suggested that appropriate warranty language be inserted into the contract to achieve or ensure some level of performance in terms of a guaranty upon which the owner can rely. With proper warranties, the owner is protected in terms of performance and assured of a certain quality level that can be enforced or remedied in the event something falls short of the mark established for performance.

Q: I live in a state that requires professional engineers to be personally liable for a design. On certain projects, the state requires that we sign a form to this effect. Shouldn’t the form say that I am professionally liable instead? What right does a state have in requiring an engineer to be “personally liable” for a design?

A: This question presents a couple of complex issues. First, professionals are licensed and, therefore, you must recognize that the state that issues the license can legally regulate the practice of the profession. Similar to lawyers, engineers are regulated in their practice by the various states in which they are licensed. Many states require that a licensed engineer remain personally liable for their design as opposed to having a corporation or an entity be liable for the design. There are a number of public policy arguments requiring personal liability, not the least of which is that professionals must take personal responsibility for their conduct since it is a privilege to practice in a profession and the potential exists of great harm to the public if the professional does not meet the standards imposed by that state. For those states that require personal liability, professional liability insurance is purchased for that purpose, which will, in almost all instances, pay for negligent acts or practice, but will not pay for willful or intentional conduct or misconduct. The purpose of a personal liability regulation is to ensure that in the event of some harm caused by the professional, that the professional is responsible, not an empty shell corporation or partnership or some other form of business entity. The professional has an incentive to perform to the standard of care or otherwise face possible personal ruin.

The second comment on the issue of professional-versus-personal liability is more than a matter of semantics. Personal liability means that the person who is responsible for the damage or performed negligently will pay for the loss. The term professional liability is used in the context of being responsible for professional conduct, such as professional services by a professional engineer, which were negligently performed. In some states, corporations and other business entity forms can be licensed and practiced as a business entity and, therefore, the licensed engineer may not be personally liable, but instead would be professionally liable for not meeting the standards of care practice. At the end of the day, each state is different as to how it regulates the various professions, and the practitioner, to be licensed in that state, has no choice but to follow the law. Everyone is responsible to follow the law, ignorance being no excuse.

Michael J. Baker, Esq., is a partner in the Cerritos, Calif.-based law firm of Atkinson, Andelson, Loya, Ruud & Romo. He is an expert in design and construction contracts, mediation, and litigation. Please send him your legal questions via e-mail at mbaker@gostructural.com.

The answers to the questions provided herein, although intended to be accurate, authoritative, and informational, may or may not accurately reflect the law in your jurisdiction or where you do business. In providing answers to these questions, it should be recognized that neither the author nor the publisher is engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional licensed in your jurisdiction should be sought. The information provided herein is for informational and hypothetical purposes only.