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Colleges Face Pressure to Incorporate Sustainability

Traditionally, high school students in the United States have selected colleges based on a myriad of factors such as affordability, academics, and football programs. According to the New York Times, prospective students are now asking about a school’s sustainability practices and initiatives. In the competition for students, colleges now have to deal with various groups that are evaluating schools on their environmental commitments and making the results available for prospective students in the form of rankings. The rankings published by these groups examine things like LEED certification, environmental research, and green career training. Societal expectations combined with active student bodies agitating for the adoption of sustainable practices are forcing college administrators to adopt and implement sustainability practices.

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Posted by Scott Sweeney on August 30, 2011 8:36:00 AM EDT #

Arbitrating a Claim on a Tribal Project

from the desk of Frank Musica

Many design firms are providing services to sovereign American Indian nations related to casino and resort development and the many other types of projects funded by these sources of tribal income. Although we have published extensively on the claims that often occur on such projects and on the difficulty in relying on tribal law to resolve design disputes, one of the common remedies to avoiding tribal courts—contractually mandated arbitration—might need special consideration.
 
Contracts might specify mandatory and binding arbitration of disputes between a design firm and a tribal client. But without a waiver of the sovereign immunity of the tribal client, such a provision—or any award made by an arbitrator—might be impossible to enforce. Arbitration awards are not self-effectuating; they have to be enforced through court approval. While a federal court might consider an agreement to arbitrate by a tribal client as an implied waiver of the tribe’s sovereign status, such a ruling is problematic.
 
If a firm is providing services to a sovereign tribal nation and wants to rely on arbitration rather than the application of the often unclear tribal law to any dispute, it makes sense to work with legal counsel to include in the contract a limited waiver of the tribal client’s sovereign immunity for the purposes of enforcing the award. This also often involves a clear statement of choice of laws where the tribal law might be applied in some situations but state law in others. Entering into a contract with a sovereign American Indian client could result in a firm surrendering its right to payment or recovery unless appropriate legal advice guides the contract formation.
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Posted by Scott Sweeney on August 24, 2011 9:20:00 AM EDT #

Dow Home Design Challenge

global chemical company searches for sustainable solutions

In an effort to generate new ideas about sustainable design solutions for the future, the Dow Chemical Company has launched its Dow Solar Design to Zero Competition. The competition asks architecture and engineering students to design near-zero energy multi-family dwellings. 

Dow, a giant global chemical company, has expressed a commitment to sustainability, as evidenced by the sustainability goals listed on its website. It hopes to achieve its lofty goals by 2015. The goals include producing breakthroughs that will “significantly help world challenges” involving energy, climate change, water, food, housing, and health. Dow plans to develop technologies that further sustainability, and the hope is that this competition will help it to do so.
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Posted by Scott Sweeney on August 17, 2011 10:54:00 AM EDT #

Contracts in Foreign Countries

from the desk of Judy Mendoza

We are occasionally asked to review contracts for projects in foreign countries. We provide a contract review service to assist our policyholders in identifying potential coverage issues relating to their professional liability policies. We use principles of U.S. common law precedent when performing these reviews. We have no expertise in the laws of other countries.
 
The Schinnerer and CNA professional liability policy will respond to a claim anywhere in the world. The professional services a policyholder provides in other countries are covered by the professional liability policy. We suggest that policyholders seek advice from local legal counsel who can provide more specific guidance based on the specific jurisdiction.
 
When reviewing contracts for foreign projects, firms should keep in mind that the CNA policy contains the following exception to the contractual liability exclusion:
 
The CNA policy excludes coverage for any claim:
 
B. arising out of:
1. your alleged liability under any oral or written contract or agreement, including but not limited to express warranties or guarantees; or
2. the liability of others you assume under any oral or written contract or agreement.
 
However, this exclusion shall not apply to your liability that exists in the absence of such contract or agreement.
 
In a foreign jurisdiction where your liability to a client is predicated only on contractual liability, subparagraph B.1 does not apply except to the extent that you have agreed to pay consequential or liquidated damages.
 
Also, remember that the Schinnerer risk management website contains an entire section of management advisories on international practice. Here is a link to the management advisories on our website:  http://www.schinnerer.com/risk-mgmt/Pages/Management-advisories.aspx
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Posted by Scott Sweeney on August 10, 2011 11:08:00 AM EDT #

Use Our Claims Resources

Serving the design and construction industry for more than 50 years has its advantages. Stability. Predictability. Reliability. And also, a deep well of claims data from which to pull benchmarking and claims trends. Our claims study offerings are vast, allowing firms to see which project types, problem areas, and other critical practice and project components present both challenges and rewards.

Last summer we updated 19 of our claims/case studies with claims data through 2009. This summer we’ve updated a significant amount of our benchmarking and claims studies with data through 2010, which we’ll be posting each Wednesday through the fall. We started this process two weeks ago with a revised version of From Risk to Profit: Benchmarking and Claims Studies, our expansive look at critical practice areas for all design firms. After that we posted updated versions of our design-build and environmental services claims/case studies. We will be posting a revised study each week for the next 9 weeks. Remember to check back each week for the latest update. As always, our risk management resources are password-protected for the benefit of our policyholders and brokers.
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Posted by Paul Riccardi on August 5, 2011 9:58:00 AM EDT #