Green Building Opens New Doors and Windows to Litigation

For this week’s Guest Post Friday here at Construction Law Musings, we welcome Paul E. Beers.  Paul is the Managing Member of Glazing Consultants International, LLC (GCI), a building envelope consulting firm in business since 1988. He has over 25 years experience in the window and glazing trade and with building envelopes. He is a leading expert with glazing systems and hurricane damage and protection and was instrumental in the development and implementation of missile impact tests after Hurricane Andrew hit Dade County, FL. His expertise includes windows, doors, glass and wall claddings with an emphasis on water leakage and damage. He has served as an expert witness in federal and circuit courts for windows, doors, glass and wall systems and water leakage. Paul can be reached at pbeers@glazingconsultants.com or on Twitter @glazingconsult. Find out more about GCI on the web at http://www.glazingconsultants.com, and join its LinkedIn group to discuss building envelope issues.

I admit I’m a sucker for new technology.  Just this week, I ordered an Apple iPad with all the bells and whistles. A friend showed me his, and then, I had to have one. My justification is that I can now travel without lugging my 10-pound laptop everywhere.

Knowing my luck, Apple will come out with the new and improved model next week, and mine will be obsolete. But I bought with confidence because I know Apple puts a lot of resources into research, development and product testing.

Unfortunately, that’s not always the case with new building materials. Many products are ultimately tested in the field, and if history is any indicator, problems may develop with “green” technologies for buildings.

When building codes were changed for better hurricane resistance a few years back, it spawned new applications and adaptations of existing products, first in South Florida and then in many other areas of the U.S. and Caribbean. Good ideas didn’t always turn out as intended, resulting in product failures, warranty claims and litigation.

One hurricane product innovation was laminated glass interlayers, which were developed in order to pass missile impact tests. They were rushed to market and initially embraced by the construction industry and consumers. However, for some startups, quality was lacking, and visual distortion through the glass made telephone poles look wavy and the ocean look rough, even on calm days. Other glass products failed over the next few years by clouding and delaminating.

Another unforeseen effect was that some windows, doors and storm shutters which met the building code requirements leaked water profusely. They provided protection from high winds and windborne debris, but they were not properly designed to resist water leakage.

A lot of claims and litigation related to the new hurricane technologies developed, including several class action suits.  Some disputes were between manufacturers and suppliers, and others were between consumers and manufacturers. Repairs usually required replacing defective products and were costly and time consuming. Some startups didn’t honor claims and quickly went out of business as soon as the claims started coming in, leaving insurance companies to defend them.

I believe we can expect more of the same type of issues to arise as a result of the green movement. In the glass and fenestration industry, products are being developed with new glass coatings, new insulated glass technologies, photovoltaic cell applications, more efficient windows and doors and so on. Inevitably, the focus on energy efficiency may leave other areas such as durability, condensation resistance and water leakage ignored. In my opinion, it is only a matter of time before the next round of litigation begins.

As always Paul and I welcome your comments below. Please subscribe to keep up with this and other Guest Post Fridays at Construction Law Musings.