There are two key questions for owners and design professionals to consider in connection with standard of care provisions in construction agreements: (1) has the design professional agreed to perform at a higher standard of care than that which prevails in the industry? and (2) has the design professional provided the equivalent of a warranty or guarantee to the owner with respect to the services that it will render? Language that obligates the design professional to satisfy “the highest standards of the profession” or “the standards of similar firms with extensive green design expertise” is ambiguous and may allow an insurance carrier to argue that the design professional agreed to perform with a higher level of care for which insurance coverage may be unavailable. This is because most professional liability insurance policies contain an exclusion for assumptions of liability that are not imposed by law (i.e., by agreeing to perform at a higher level than the prevailing common law standard, the design professional will not be covered for any resulting claims of negligent design services). Such language may also be construed by a court to be the functional equivalent of a warranty or guarantee in the event of a dispute; as set forth below, most professional liability policies exclude coverage for these types of claims as well.
Owners and design professionals must consider the foregoing standard of care considerations in connection with green building projects and should discuss the professional liability insurance coverage implications of such provisions with their insurance carriers if they have yet to do so already. A more general discussion of whether certain representations in standard of care provisions will be deemed by the carrier as raising the standard of care beyond the prevailing common law standard is also advisable. Regardless, it is critical for design professionals to keep in mind that because the standard of care is a moving target, paying careful attention to the language in such provisions during the course of construction contract negotiations for a green building project is imperative.
Just as officers are held to a higher standard …
This scenario is called the "zeroth law of thermodynamics" since this understanding logically precedes the ideas contained in the important and Laws of Thermodynamics.
The Quality Assurance Agency for Higher Education (QAA)
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$15 Minimum Wage - Mayor Murray
Note that this refers to water (the standard state of H2O at 25°). If you think about it, a negative standard Gibbs energy of formation (of which this is an example) can in fact be considered a definition of molecular stability.