I sometimes do litigation work on EIFS, mostly on projects that have problems. It's often unsatisfying; lots of laws but little justice. On the bright side, however, there are ways for one to avoid getting sucked into the vortex of litigation. This month's column gives some tips on how to avoid getting dragged into legal situations when dealing with EIFS.
Caveat. I am not a lawyer; this is not legal advice. It's simply meant to give insights into certain issues. Check with your counsel to see how it applies to your business.
Point One: CYA. It goes without saying that record keeping helps a lot if you get into a legal situation. Like termites, lawyers crave paper. If you've got good records, then it's much easier to prove "who did what when," and save your skin. I realize that maintaining records is a pain in the neck, but trust me, when the stuff hits the fan, you'll praise the day that you remembered to write and save a particular letter or memo. Now re-read the previous sentence aloud.
Point Two: If someone tells you to do something that is contrary to what is required by the specs or contract, or doesn't pass the "common-sense test," ask the people demanding you do so to put it in writing. If it is truly OK to do so, then they should have no reservations about putting it in writing. If they do have reservations then there may be a problem. Chat with them to see why. If the response is unsatisfying, consider writing and asking why they can¿t confirm their request. Paper is cheap; lawyers are not.
Point Three: All EIF systems are proprietary systems. EIFS is not a generic product like stucco. There is a lot of published information and untold years of history about how to use stucco. Such is not the case yet with EIFS. Although there are many similarities in the way that different EIFS manufacturers' products are installed, each EIFS manufacturer has its own requirements for how its system should be installed. These product-specific instructions need to be followed. In other words, don't try to design your own EIFS. There's more to EIFS than meets the eye and changing the materials, construction details or the way a system is installed requires an in-depth knowledge of EIFS as a whole. That kind of knowledge is rare, so stick to what you're good at.
Point Four: There are some--but not a lot--of "industry standards" for EIFS. Some come from various trade organizations, while others have become de facto standards through years of use, although they exist nowhere in writing. Keep in mind that use of "industry standards" is often a contractual matter, rather than one of law. In other words, building code requirements are a matter of law, and following them is mandatory.
However, a requirement to follow "industry standards" is rarely a matter of law, but rather is often a matter decided upon by some private specifying entity, such as an architect. Hence, "industry standards" are capable of being used or not used, depending on project circumstances, owner's wishes and so on. If someone asks you to do something that is contrary to your contract or contrary to the codes, get it in writing.
For example, the maximum thickness of EPS insulation used in EIFS is limited to 4 inches by code in many parts of the United States. If someone tells you that it's OK to use 6 inches over the entire façade of a building, think before doing so. What he or she is telling you could be construed as breaking the law. I doubt you want to do so. Thus, I would question whether or not the person has that authority. Again, get it in writing.
Point Five: One of the most common sources of field problems is not following the EIFS manufacturer's basic requirements or changing them without authorization. If you want to do something that differs from the published requirements of the EIFS manufacturer, get it in writing from someone with the authority to do so. Does a local EIFS rep have such authority? EIFS manufacturers are usually more than willing to review the use of their product on a project-specific basis, and a formal OK by them to do things contrary to their published general recommendation can sometimes be obtained in writing, provided there is justification.
Examples of "exceptions" that frequently occur include the angle of sloped surfaces, the need to backwrap the edge of an EIFS, and the use of sealants around windows in houses. For example, the architect may want to use a flat (or nearly flat) slope for the EIFS on the top of a balcony wall, and may justify it by saying that the project is in a climate area that has little or no rain. It may sound like a good argument, but there are cases in court now in which this very matter is an issue ... in areas with dry climates.
Point Six: Know your role in the project. Contractors build things. Architects design things. Do your job. If you tread onto the turf of others, you may assume the liability for their function. A classic example is a distributor or contractor that provides written details for an EIFS condition, and hence becomes the designer of that detail. If the detail fails, who is then seen as being the designer? And then the finger pointing starts. It can get more complex. If there are no details on the job (for instance on a house, when there is no architect) and the contractor constructs the details in a manner contrary to industry standards or the manufacturer's published details, the contractor might be construed as acting as an architect. How many contractors do you know that are licensed to practice architecture? The implications can get scary.
Point Seven: Don't follow the herd; follow the right herd. The argument that "everyone does it that way" or "I've been doing it that ways for years," may not get much sympathy in court. It's a bit like admitting that what you are doing is wrong, but saying that it's OK because everyone else is doing it wrong, too. Just because you've been doing it for years and are not aware that there are any problems does not necessarily prove that there are none.
In summary, a safe course to avoiding legal problems is to simply fulfill your obligations as outlined by the party expecting you to do the work. If you are a distributor, it means properly and actively promoting and supporting the use of your supplier's product. If a contractor, it means following the specs, contract, manufacturer's published requirements and so on. It's not hard, and a little CYA along the way can go far in avoiding problems in the future.
We all know that EIFS is a terrific product, but some others are not so sure. It seems that no matter how careful we are these days, we eventually get dragged into some legal mess. So do your job well, CYA as needed and you'll help keeping the legal jackals at bay.
