How many lawsuits have been filed against your company this year?
Survey Results for 10/29/2008:
How many law suits have been filed against your company in the past year?
1 to 2
More than 10
3 to 5
6 to 10
Considering the anecdotes I hear, I am actually relieved to see the results of this week’s survey. Whether our respondents were manufacturers, dealers or even suppliers, I don’t know, but the fact that three out of four are reporting their company has not been sued seems pretty good. Of course, I can’t say how many WDweekly readers with companies facing three, four, five or more recent lawsuits opted out of participating in our weekly poll. Even knowing all responses are anonymous, I’m sure there’s a few out there that decided not to share their own company’s history on this front.
The Litigation Trends survey I referred to last week found only 21% of U.S. companies reporting no new lawsuits filed against them in the past year. So you might think the window and door industry situation is pretty good. But we know there are problems out there—particularly related to improper installations—that continue to challenge many companies.
“The issue always starts with the dealer. They say one thing and deliver another,” one manufacturer writes. “Today’s homeowners are well educated and the internet is now part of our lives. We need a lawyer present when a contract is signed. I have helped a lot of dealers and homeowners settle disputes over what is our fault and what is theirs, because after all the arguing, we look through the window not at it.”
Things are getting worse, according to Scott Tate. “I am an attorney in San Francisco and I have represented several large manufacturers over the years in actions across the country. I currently have a large number of suits in the Eastern Pennsylvania, Delaware and Virginia where a number of builder developers chopped up beautiful horse properties and threw up 6-8,000 square foot “McMansions” as fast as they could. The number of suits are increasing. The developers have taken their funds and transferred them beyond the reach of creditors (homeowners). Their insurance carriers are declining to cover the repair costs and anyone with resources is being targeted,” he writes.
“My clients’ ( and others') primed wood (and clad) windows have been installed in a great number of homes with completely inappropriate flashing, no isolation from adjacent stucco, sealed drip caps above them building reservoirs of water in the rough openings which lead to water intrusion into the rough opening and rot to the units and the walls themselves. The judges are locally elected and won’t enforce the Pennsylvania statutes and case law and the manufacturers’ warranty limitations. There are a number of claimed 'experts' who employ the AMA 502 voluntary sill dam test many years after initial installation and abuse in wet stucco to demonstrate the window joints have opened up and now leak. Of course they do – they have been abused. We have tried to educate the courts about the proper use of 502 – the latest news may be helpful, but the courts don’t seem to limit this misuse of 'pseudo-science.'”
We have heard about the improper use of the AAMA 502 test standard, and one positive development we can report is that the document has been updated. Intended for quality control testing of newly installed fenestration products, that test method has been for the past several years--not to check the product, but to force products in the field to failure. AAMA has recently published a new version of the document—502-08—that specifically states it is only intended for use in quality control testing. AAMA has also issued a new standard—511-08—which outlines procedures to follow for testing installed products as part of a forensic investigation of water leakage problems.
Paul Gary, an Oregon-based attorney and regular contributor to Window & Door, offers more details on these new documents, and their significance to the industry, in his latest column.
The new standards came about because the industry started working together on this issue. And there’s probably much more that could be done if we worked together and learned from each other’s experiences.
“I would love to know why those companies have 6-10 suits per year,” writes Roy Cooper of Superior Windows & Doors in Ashland, Ore. He wants to know “what to look out for.” Further, he asks whether these companies being sued for installation issues or product quality or are they suing their customers for payment issues?
I certainly don’t have answers to his questions, but I do know it’s not that difficult for large companies to get involved in litigation in our industry. If you have thousands of dealers/installers out there, and even a handful don’t handle installation properly, you suddenly have quite a few jobs where there could be potential legal problems. And large manufacturers are always brought into such suits because they have deep pockets. Smaller companies—particularly those that do the installations themselves—may have more control of their own destiny, but even there it’s hard to be 100 percent perfect for 100 percent of your customers, and you can still run into trouble.