Using AAMA’s New Tools of the Trade

New 502-08 and 511-08 documents are good step toward the fair use of product tests in a forensic investigation
Paul R. Gary
November 1, 2008
COLUMN : Legal | Management

For most companies the evaluation and processing of claims is one of those areas which can stand improvement; sometimes a lot of improvement. I assure you it is not uncommon to be good at window and door design, manufacture, sales and service; but be bad at handling claims.

Even those that are fairly adept at handling those projects that have problems have been subjected to potential liability for claims based upon the misuse of field tests which were cast as “industry standard” tests. AAMA 502-02 and ASTM E 1105 became the source of a “pass/fail” protocol for legal liability. The erroneous precept that a test failure amounts to legal liability was used to support unjust costly claims in which the products had not been a source of problems for the user. The moniker “AAMA 502” was tied to field testing procedures used on products up to 10 years old which may have been badly handled, poorly installed and bereft of maintenance.

AAMA 502, in existence since 1990, was intended as a voluntary specification used by architects as a quality control test protocol for newly installed fenestration products. It was never to be a “pass/fail” forensic centerpiece in a legal liability claim. Actually, the forensic investigation of reported post-construction leakage in existing building walls is appropriately addressed by the lesser-known ASTM 2128. In the context of that ASTM procedure, the window is appropriately considered as part of the wall system. Having seen the problem, AAMA has published two new tools for use by interested parties.

AAMA 502-08
The first tool is an update to AAMA 502 itself. The new edition, 502-08, is explicitly limited to testing of new products, i.e. prior to issuance of a certificate of occupancy and in no case more than six months after installation. This covers the period during which quality control field testing may be appropriate. The new 502-08 document states that it is not appropriate for a forensic investigation of reported leakage. The commentary is explanatory and quite helpful in clarifying the purpose of 502-08.

AAMA 511-08
The second tool is the new AAMA 511-08 document, which addresses field testing of windows and doors in the context of an investigation of the source of reported water leakage. The new AAMA standard points to ASTM 2128 as establishing the process and scope for this type of investigation. AAMA 511-08 directs that the purpose of testing of windows/doors, as well as testing the integration of product into surrounding construction, is solely to recreate leakage otherwise known to have occurred. Prior leakage is confirmed by an investigation process described in ASTM 2128. Only if that process supports the hypothesis that the fenestration product may be the cause, then product testing may be appropriate. In other words, product testing is not always appropriate.

A forensic test designed to recreate an existing leak, not induce a new leak, must reasonably recreate the circumstances in which the existing leak occurred. For this reason, 511-08 calls for investigation of recorded weather during the period(s) of reported leakage. It sets forth a detailed procedure which is used to determine the air pressure used during 511-08 testing (water test protocol ASTM E 1105). Note must be made, however, if the pressure exceeds two-thirds of the rated design pressure for water infiltration which is the maximum used to establish a test failure. [At this time, the rate of water used during the test remains as in ASTM E 1105.] 

USE OF THE NEW STANDARDS
AAMA 502-08 and AAMA 511-08 are a good step toward the fair use of product tests in a forensic investigation. Only a systematic, logical forensic investigation should be used in conjunction with serious claims for corrective action and/or damages. So, with regard to windows and doors these “tools” are very important.

Yet, like any other new tool the question is the extent to which and how they will be used. They cannot be written into use, they must be put to use. Will this happen? How? It is up to us. What are we to say and do about these two relatively new elements of the AAMA program?

In my view, manufactures and resellers have to consider whether they will take the stand that, in order to be recognized, all quality control protocol testing must comply with the terms of AAMA 502-08. Exceptions must be agreed and individually documented.

With regard to AAMA 511-08, the same decision is required. Do you tell a potential claimant, or its consultant, that your company will not recognize any forensic procedure not in accordance with 511-08, including a requirement for an AAMA-certified test agency? If not, why not? A corollary is whether you commit “up front” to take action if the result of a properly performed 511-08 test indicates that the window or door may be a source of reported leakage.

What about testing companies, in particular AAMA-certified testing agencies? You have to decide if you will require clients to authorize testing only according to the approved protocols. If not, what is the basis for your decision? What documentation should be provided to the client who refuses to support your request to follow the published protocol? What does AAMA certification mean in the area of field testing?

If the answer to any of these questions as to whether you want to make these tools effective is “Yes,” then, with your commitment, we have the opportunity to make AAMA 502-08 and AAMA 511-08 truly important factors for both product support and the resolution of claims in our industry. [For the lawyers who read this far, you have to ask how this impacts warranty coverage.] Yes, it will take documentation, training and discipline in implementation. In other words, it will take work. But the investment now can provide returns not dependent on others, not even Wall Street.
 

Paul R. Gary is the prinicipal of The Gary Law Group, a law firm based in Portland, Ore., emphasizing legal issues facing manufacturers of windows and doors. He welcomes feedback about articles published in Window & Door and can be reached at 503/227-8424 or paul@prgarylaw.com.