The American Architectural Manufacturers Association (AAMA) hosted Chip Gentry, founding member of Call & Gentry Law Group, to advise those at the conference about the role of both proper installation and good insurance when it comes to avoiding litigation.
“Build it cheaper and faster is a core cause of construction defects,” says Gentry. “It means an inferior final project, and it’s a problem.”
Some of the biggest risks are lofts and apartment conversions and redevelopments, hotels, condos, centralized owners and high-volume products, he said.
“Bad building or design cases manage to become bad window cases,” says Gentry. “They’ll sue the general contractor, and water in a building is blamed on fenestration no matter where it shows up.”
Construction defect litigation is time consuming and draining, both financially and emotionally. And, more parties can lead to greater difficulty in reaching a settlement. Often there are fights between insureds and insurers, and it can be difficult to get people on the same page, said Gentry.
Fenestration companies are commonly sued for things like contract disputes, disgruntled employees, patent litigation and, more often than not, installation issues.
“Installation mistakes can be prevented,” says Gentry. “We have to be at least somewhat involved in installation because of this.”
Gentry offered several of the most common installation mistakes that can lead to litigation, and among them are not sealing house wrap, lack of end dams, flashing or subsills, and poor shimming. Poor caulking is also a common mistake, whether it means not cleaning the substrates thoroughly after, not using the proper tools, or not leaving space for caulk to expand or shrink.
Gentry implored, final checks matter. “Installers are the face of the window industry,” he says. “You have to see, does it open? Does it close? Does it lock? Were specifications followed? Get your standards set; be involved in specs. Get boots on the ground, and make sure it’s done right.”
A dollar today can save your company millions tomorrow, he added.
Aside from avoiding installation mistakes, the best thing you can do is have good insurance, said Gentry. He recommended making sure you have enough insurance limits to effectively protect you.
“Be better prepared,” he advised. “Be aware of the various clauses you can shop for that provide more meaningful protections for your company.”
Knowing your rights is also critical, said Gentry. “You have a right to add counsel of your choice,” he says. “Find one with fenestration experience and knowledge of your company. Find a reputable broker you can trust, who has experience in window manufacturing, to make sure you have the right insurance.”
Some ways to lower the price tag, said Gentry, include avoiding, or at least limiting, claims. Manage risk by keeping track of prior claims and erosion of limits. Update a list of claims under each policy. Be prepared for a carrier to sue. Control exposure, and keep a paper trail.
Lastly, Gentry advised all to keep their old policies. “Old insurance policies are golden,” he says.
Gentry also contributed a blog with advice regarding how to avoid fenestration litigation, which can be found on the AAMA website.