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It’s a hard truth that when building envelope defects are claimed, virtually everyone involved in the design and construction processes gets sued, right or wrong. It’s an even harder truth that due to the high risks and costs of going to trial the insurance carriers for some of these parties will end up paying some amount to settle a portion of the claim, even when there is little or no clear evidence of direct responsibility for the water leakage and resulting damage.

When moisture damage or mold proliferation is claimed and the finger-pointing begins, the primary roles of the building envelope consultant are to:

  1. Establish how and why the leakage occurred; and
  2. Defend your client against unsupported or exaggerated claims.

To this end, one of the key questions asked by each of the many building envelope consultants representing the plaintiffs and defendants is: Does the project design and construction conform to Building Code requirements and local industry standards? Sometimes, simple answers to this question are impossible, especially when considering new standards for construction practice published by national standards-writing organizations (e.g., ASTM International) but not yet fully accepted at the regional and local levels.

Consider ASTM E 2112 (Standard Practice for Installation of Exterior Windows, Door and Skylights), published in September 2002. The largest ASTM standard ever published, E 2112 provides detailed and comprehensive step-by-step protocols for installing and flashing residential and light commercial windows and doors. E 2112 is such an important advancement in this field that AAMA (American Architectural Manufacturers Association) developed the independent nationwide InstallationMasters program (www.installationmastersusa.com) to spread the new gospel.

Even so, more than two years after its publication, E 2112 typically has been embraced by only the best building envelope designers and contractors and some forward-thinking window manufacturers. For most building professionals, E 2112 either remains a complete unknown or is simply dismissed as being too radical.

Unfortunately, it is another hard truth that some of these unaware or dismissive designers and contractors currently are constructing buildings that soon will allow water infiltration at windows and doors, resulting in deterioration and/or mold growth and a large building envelope defects claim against almost everyone with insurance coverage who ever stepped foot on the job site, including the designer, the contractor, the window/door installer, the flashing installer, and the cladding and sealant installers.

At that time (several years in the future), some building envelope consultant is certain to issue a report asserting that E 2112 was the accepted local industry standard at the period (present day) of construction and that the failures by designer, contractor and installers to conform to its stricter flashing and installation requirements makes all of these parties partially responsible for the mold and water damage – even if the source(s) of the leakage are not flashing or sealing failures. The defending experts then will issue opposing reports arguing that the E 2112 standards for proper design/construction practices had not been ‘generally accepted’ within the local market at the time of construction.

Eventually, the case will reach the hands of an arbitrator or jury who likely will conclude that:

1) an acclaimed window flashing standard published in 2002 surely should have been accepted locally after more than two years of nationwide promotion by AAMA, InstallationMasters and others;

2) the severity of existing water damage and mold growth is partially attributable to the failures to conform to E 2112; and 3) the defendants’ insurance carriers should contribute significantly to funding remediation of the water damage (most commercial policies now exclude mold remediation).

In other words, we confidently predict that within the next few years some readers of this column will experience costly retroactive imposition of the E 2112 standards by legal fiat and will unhappily realize that the long-term risks of ignoring new not-yet-fully-accepted industry standards can be much greater than the short term rewards.

Consider, for example, that E 2112 calls for minimum 9” wide flashings at fenestrations and also requires flanged window and door units to be set into a continuous bead of sealant. From a long-term ‘risks vs. rewards’ perspective, does it make sense to save a few dollars now by continuing to specify or install 4” wide flashings? What about the potential future risks for the well-known window manufacturer whose nationwide promotions for their 3” wide self-adhering flashing membrane includes assurances to contractors that no sealant behind flanges is needed when their flashing is installed?

The moral of this story is that in an era where multimillion dollar awards for claimed mold damage are becoming common, and the availability of mold coverage is increasingly limited, the key to business survival is to proactively embrace the new stricter standards and designs – don’t wait for the retroactive bombshells from a future lawsuit.

July 2007
Issue Seven, Volume Two

This article by Colin Murphy and Lonnie Haughton.

Colin Murphy
Murphy is a founder and managing partner of Trinity | ERD.

Lonnie Haughton
Haughton is a construction codes and standards consultant with Richard Avelar & Associates.

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"Pushing the Envelope: A Monthly Journal of Issues Concerning Building Design, Science, and Litigation" is a monthly publication of Trinity | ERD. This newsletter is intended as a thoughtful look into the issues of building construction.

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