Clients retain METROPOLITAN
on a variety of defect claims and disputes. Our clients have included plaintiff Home
Owners Associations, plaintiff contractors, defendant contractors and design
professionals, and third-party contractors, and fourth-party contractors.
DEFECT
CAUSATION
We often perform
on-site investigations to determine the cause(s) of various distresses and
non-performances of building materials, products, assemblies, systems and
components, along with the causes(s) of the construction defects. Additionally, METROPOLITAN is often requested
to provide general construction defect repair and building remediation
recommendations to correct identified defects and deficiencies, and to
establish the probable costs associated with the construction defect repairs.
DEFECT
COST OF REPAIR DAMAGES
We are often retained
as the construction defect causation expert and/or as the cost of repair expert
in building disputes to allocate cost of repair damages between the parties.
The process of allocating cost of repair damages can be described in several
steps:
- Identifying the parties potentially responsible for designing, installing, supervising, inspecting, approving and maintaining the work
- Identifying the parties actually responsible for designing, installing, supervising, inspecting, approving and maintaining the work
- Establishing the percentage of responsibility that each party bears
- Establishing the amount of repair cost that each party bears, e.g., repair cost allocation.
The cost of repair
allocation analyses is similar in many ways to the causation analyses we
perform on other types of claims and disputes.
A significant portion
of our defect consulting and expert witness services been associated with
determinations of whether the building defect and damage claims resulted
directly from the insured’s defective workmanship or from consequential causes.
Predictably, a large segment of our consulting and expert witness work involves
water intrusion and other architectural issues.
CONSTRUCTION
DEFECTS EXPERT | EIFS
According to the
definitions of the International Building Code and ASTM International, an
Exterior Insulation and Finish System (EIFS) is a no-load bearing, exterior
wall cladding system that consists of an insulation board attached either
adhesively or mechanically, or both, to the substrate; an integrally reinforced
base coat; and a textured protective finish coat.
EIFS with Drainage,
another EIFS system, is the predominate method of EIFS applied today. As the
name implies, EIFS with Drainage provides a way for moisture that may
accumulate in the wall cavity to evacuate.
EIFS
were first introduced in the United States in the late 1960's, and were first
used on commercial buildings, and later on homes. EIFS typically consist of the
following components:
- An optional water-resistive barrier (WRB) that covers the substrate
- A drainage plane between the WRB and the insulation board that is most commonly achieved with vertical ribbons of adhesive applied over the WRB
- Insulation board typically made of expanded polystyrene (EPS) which is secured with an adhesive or mechanically to the substrate
- Glass-fiber reinforcing mesh embedded in the base coat
- A water-resistant base coat that is applied on top of the insulation to serve as a weather barrier
- A finish coat that typically uses colorfast and crack-resistant acrylic co-polymer technology.
The
Pros and Cons of EIFS
The people that
marketed EIFS did a good job of convincing the public that it was far superior
to stucco, because it was light weight and didn’t crack. In fact, they did such a good job of putting
the fear in the public’s eye, that cracking in stucco meant that the integrity
of the building was at stake.
EIFS has its place
and works well in the right environment. EIFS is a great product to use in a retail
situation where, in most cases, it is applied to a metal structure, with the
intent that it will probably be remodeled or changed often. EIFS is a great application for this, because
it is inexpensive to tear it out and change the face of the building.
EIFS has become a
disaster in more permanent applications like homes and churches, especially on
wood structures. In most cases, homes
are a lifetime investment, and the home owner is not in a position to tear it
out and change it up as they would in a retail situation. The problem arises when moisture is allowed to
get into the walls, usually through penetrations such as windows or doors, or any
penetration for that matter. Once
moisture gets into the wall, it becomes trapped and causes the structure to
rot. Because EIFS is flexible and will
only crack in extreme situations, the substrate and framing can be completely
rotted out with no sign of problems from the outside.
Why EIFS Fails
EIFS primarily fails because there is NO moisture barrier protecting your
wood when rain gets in. When rain gets
trapped behind the foam the water begins to mold or rot the wood underneath the
building envelope. The moisture gets
trapped between the foam backing and the wood sheathing it is attached to. Usually EIFS synthetic stucco is glued on or
put on with grommet style fasteners. When
rain penetrates ANY cracks or openings and gets behind the EIFS, it is unable
to evaporate because of the constant moisture we get. The moisture attacks the
wood sheathing, framing, and studs simply because it can't escape or drain out.
This leads to dry rot and toxic mold
problems because of the constant rain we have here in the Portland area. The dry rot and mold damage can often cost as
much as the new siding to replace it because after it gets into the wood it
starts to eat away at the studs & sheeting. The rotting wood underneath the EIFS
ultimately leads to the destruction of the homes structure if left untreated.
Common moisture problems appear around the areas where the EIFS meets the
windows, wood trim, roof flashing, and doors. EIFS that sits below the dirt or
grade is also an easy entrance point for moisture and insects to start working.
We have found that the worst insect problem
is carpenter ants which nest in soft moist wood. We often see the damage they can do
structurally as we were replacing LP siding or EIFS stucco.
Although most EIFS manufacturers have detailed installation instructions,
these are often ignored by installers since few siding companies have
experience installing EIFS in the Portland metro and southern Washington area.
EIFS simply never should have been brought to our climate.
Another common issue with EIFS is the failure to install proper flashing
systems that can hold up with the rain and the expansion/construction caused by
the varying temperatures of the summer and winter months. On 9 out of 10 EIFS homes that we deal with
the existing flashing is improperly installed or missing altogether allowing
large amounts of moisture infiltration causing dry rot and mold damage on the
interior framing and wall surfaces.
How EIFS is installed and
removed
EIFS is typically attached to the outside face of exterior walls with
glue adhesive or mechanical fasteners designed for this application. To remove EIFS, generally it is scored with a
sharp knife. When EIFS is glued on, it
is much harder to remove than when it is put on with fasteners because it has
to be meticulously & slowly scraped off inch by inch. The white Styrofoam stuck to the glue is
HIGHLY resistant to coming off. In most areas,
EIFS is usually attached to gypsum board, OSB (oriented strand board) or real
plywood. That surface should be
continuous (not "open skip framing"). It should be flat and very stable. When it isn't glued it has the fasteners
installed in a random pattern. This is a
bit easier than glue but still difficult to remove since the fasteners end up
being wherever the original installer felt like putting them. The installation could have been every foot to
every few feet. When the foam beads fall
apart they need to be contained quickly although it would be impossible to
contain every foam bead. It is a
nightmare if any winds start up.
Legal issues
EIFS systems have been the subject of numerous lawsuits due to moisture
buildups and subsequent mold growth. The
most notable case concerned the former San Martin, California courthouse. This case was settled for 12 million dollars.
The basic underlying problem behind EIFS litigation was that EIFS was
marketed as a cost-effective replacement for stucco. Stucco is expensive to install because it
cracks over time. Stucco must be
carefully applied by skilled craftsmen so that the cracks which will inevitably
develop are subtle and not obvious. General
contractors who migrated to the northeast and northwest from the south during
the building boom of the 80's and 1995-2007 switched to EIFS because it was
supposed to be easy to install with unskilled or semi-skilled labor and would
not crack like traditional stucco. Many
general contractors cut corners by using unqualified cheap laborers. Partially due to these unskilled workers,
thousands of EIFS installations were noncompliant and suffered severe water
intrusion and mold as a result. While
the EIFS industry has consistently tried to shift the blame to GCs, the
construction industry has retorted that using professional unionized journeymen
carpenters in turn eliminates the cost advantage of EIFS over stucco, and that
the EIFS industry should have anticipated this issue and engineered its products
from the beginning to be installed by unskilled labor or semi-skilled labor
(that is, it should have been a fault-tolerant design).
The EIFS systems can work well and be good solutions but they require a
higher level of protection from moisture.
There are many factors that have contributed to the damage of the homes
due to water infiltration. Here are some
of the arguments regarding the common cause of failures:
1. Poor architectural
design that traps or directs water back into building assemblies and does not
allow sufficient drainage;
2. Failure to detail a
well thought out moisture management plan and specifying the wrong materials
for a given application;
3. Poor workmanship and
substandard construction practices;
4. Moisture generation
from the building occupants and lack of maintenance.
5. Building components
get wet and damaged by
a. wind and gravity
driven rainwater through leaks in the building envelope;
b. capillary action,
water being absorbed from surrounding wet materials or conditions;
c. air movement of
moisture carrying air in and out of the building envelope;
d. moisture flow through
diffusion from a higher humidity environment to a lower humidity environment
A high performance
moisture management system would consist of the following components:
1. Weather resistive
barriers (WRB), Drainable WRB (best practice); for maximum protection utilize rain
screen systems (best practice);
2. Step and kick-out
flashings at roof wall intersections;
3. Adhered flashing
systems for windows, doors and all penetrations;
4. Through-wall flashings
at transition of dissimilar claddings;
5. Through-wall flashing
and a weep system at the base of wall for masonry/stucco claddings;
6. Prefabricated
seamless flashing boots for roof penetrations;
7. A continuous exterior
air barrier system and interior air sealing;
8. An interior vapor
barrier as required by local codes
EXAMPLE PROJECTS
Examples
of the projects METROPOLITAN has worked on as Construction Defects Experts in EIFS-related
disputes include:
1. Defending the
Project Manager/Construction Manager at Mets stadium in New York regarding
alleged defects in, amongst other things, the fabrication, installation and
construction of the exterior insulated finish system (“EIFS”) located on the
plaza level of the Stadium.
2. Representing the
plaintiff in an action against the architect on a hotel in Texas, wherein the
hotel experienced mold infestation during and after construction.
3. Representing the
Owner, prepared repair recommendations for a damaged EIFS system at a retail
chain store in Pittsburgh, PA.
4. Performed
quality/assurance review of architectural EIFS and brick veneer system design
for a university campus administration and classroom building in Trenton, NJ.
5. Performed forensic
review of EIFS skin design, window design, and construction for a 10-story
condominium structure in New York City, NY.
6. Performed hundreds of
forensic investigations at EIFS-clad homes and commercial facilities throughout
the US. Prepared damage assessment
reports, maintenance guidelines, costs for removal and replacement of the EIFS.
7. Representing the
plaintiff in an action against the builder/developer, identified deviations
from manufacturer’s recommendations in an EIFS skin at a single family home in New
Haven, CT.
8. Performed peer
review services as well as services for defendants in several cases involving
modified stucco systems with foam trim and molding details covered by
traditional stucco.
CONSTRUCTION
DEFECTS EXPERTS | Hotels
METROPOLITAN
has been retained as Construction Defects Experts on a wide range of
construction and design defects matters.
Hotel Building Wrap
Delays
to Building Closure, and Exterior Insulation and Finishing System (“EIFS”)
On
most hotel projects, achieving building closure and dry-in are critical
milestones. Had the structural concrete work been performed per the contract
schedule, the subcontractor would have had time to complete its Exterior
Insulation and Finishing System (“EIFS”) work over the summer of 2011, before
the fall and winter seasons, and permanently dry-in this New York condo/hotel
project. However, the general contractor
was not substantially complete on the roof until early October 2012. Therefore, the sub could not complete its EIFS
system before the cold weather set-in. This resulted in the need to first wrap the
building in August 2012 to achieve temporary dry-in, and then rewrap the
building (as a result of subsequent wind damage). Temporary dry-in was
achieved around the end of December 2012, thus allowing the GC to heat the
floors and the sub to tape/texture drywall.
The
six-month- delay to temporary dry-in resulted directly from the GC’s structural
concrete and roof steel delays, which resulted in:
1. Delays to EIFS
work;
2. The requirement to
wrap and rewrap the building, and;
3. Delays to building
heat, D/W tape and texture, doors, tile, guestroom finishes, etc.
A
storm destroyed the wrap and the rewrap was paid for via the sub’s builders
risk insurance claim.
Construction Expert – Residential
Construction Disputes
$15
million Multi-family Condominium Project, Mahwah, NJ
Our
General Contractor client submitted numerous change order requests, and the
Owner approved $1.8 million on this multi-family residential project.
However, the Owner unreasonably rejected
approximately $700,000 in change requests. METROPOLITAN’s
analysis of these Proposed Change Orders (PCO) revealed that the Owner’s
rejection of the PCO was unreasonable. Our
client submitted numerous requests for time extension to the Owner. The Owner approved certain requests and
granted a total of 60-days, thus extending the contract completion date. The Owner also rejected numerous time
extension requests. The certificate of
occupancy was issued 365-days after the amended contract completion date. Based on the results of our CPM schedule delay
analysis, the Owner was responsible for the majority of this delay.
$13 million residential homes, New York City, NY
METROPOLITAN
was retained by the GC who had been sued by the Owner for cost overruns on a residential construction project built under a Cost of
the Work Plus a Fee contract. The
primary issues related to the differences between the project, as indicated in
the incomplete contract drawings, and the home as constructed. Costs increased as the design and finish
requirements for the home evolved, in large part as a consequence of more
expensive owner selections. The owner
tried without success to hold our client to its initial estimate and to
characterize the value of changes between the estimate documents and the
contract documents and other compensable changes as “underbid.” The Owner lost this case.
$16
million residential development, Trenton, NJ
METROPOLITAN
was retained by the Owner who had sued the GC and architect for cost of repair
damages resulting from a wide range of design and construction defects on this residential construction project.
CONSTRUCTION
DEFECT COST OF REPAIR CLAIMS
The
construction defects expert’s process of assigning responsibility and
allocating defect repair costs basically centers around:
1.
Identifying the parties potentially responsible for
designing, installing, supervising, inspecting, approving and maintaining the
work,
2.
Identifying the parties actually responsible for
designing, installing, supervising, inspecting, approving and maintaining the
work,
3.
Establishing the percentage of responsibility that
each party bears,
4. Establishing the amount of repair cost that each party bears, e.g.,
repair cost allocation.
Cost of repair
allocation analysis is similar in many ways to the causation analyses we perform
on other types of construction disputes.
We are unaware of any
magic formulas defining either the accountability or financial
liability/allocation processes. Using
algebra to solve for unknowns won’t work and neither will the use of advanced
mathematics such as Laplace Transforms. These
processes demand much more traditional applications.
And, in contrast to
the methods employed by a few less experienced construction defect consultants
we have encountered, a particular party should not always be allocated a
particular percentage of the damages. For example, the general contractor
should not always be allocated a certain percentage of the damages simply
because it was the “general contractor.” Life is not so simple, and neither is
the construction defect cost of repair causation and allocation processes.
COST
OF REPAIRS ALLOCATION
The process of
allocating either estimated or actual repair costs to the responsible parties
will depend in substantial part on the quality and quantity of the available
project documentation. Any or all of the
documentation typically produced through the discovery process could have an
impact on the final construction defect cost allocation. There is not enough space available in this
blog to address the potential relevance of each category of documentation. Therefore, we focus here on only a few
categories:
BID
PROPOSALS
Assuming that the
contractor’s bid proposal was incorporated into the contract documents, any
inclusions or exclusions in the bid could be relevant. For example, we have seen situations wherein
the subcontractor’s bid excluded work for which the HOA had later sued the
general contractor.
CONTRACTS
Experts begin with an
analysis of the construction contract when assigning responsibility for the
work. However, even Standard Forms such
as AIA Documents can conflict with each other and/or State law. Our construction defects experience reveals
that custom agreements are much more likely to contain ambiguities relating to
the parties responsibilities. Similarly,
written amendments that seemed clear to the parties at the time often become
murky after a building dispute arises.
PLANS
AND SPECS
Was it built per
plans and specs? Such an easy question to ask, but often such a difficult
question to answer. Consider a few of the possibilities:
- The work was built according to the plans/specs and is not deemed defective;
- The work was built according to the plans/specs, was not defective at the time of acceptance but is deemed defective now;
- The work was not built according to the plans/specs, was not found defective at the time of acceptance but is now found defective;
- The work was not built according to the plans/specs, was not deemed defective at the time of acceptance because it satisfied and still satisfies the intent of the plans/specs, but is now deemed defective by the opposition.
- The plans and/or specs contain errors, the work was built to the plans but was not found defective at the time of acceptance, is now deemed defective by the opposition but not by defendants experts.
- The plans and/or specs contain errors, the work was not built to the plans, was not found defective at the time of acceptance, and is now deemed defective by the opposition and by defendant’s experts.
Just because it wasn’t built per plans and specs,
doesn’t necessarily mean the work should be or has to be repaired or replaced
PARTIES’
COURSE OF DEALING
The parties’ course
of dealing during the construction project can modify the terms of the written agreement.
Email, personnel interviews and
depositions are often the best ways to investigate this topic. For example, the contract indicates that the
trade contractor was to call for inspections but the general contractor later
orally assumed responsibility for that task.
JOB
INSPECTIONS
It is not unusual for
numerous parties to have written construction supervision and inspection
responsibilities on a project. We have
worked on projects where the owner, developer, architect, engineer(s), general
contractor, subcontractor, and outside agencies each inspected the work in an
effort to ensure that it was built per plans, specs, codes, ordinances, etc. The task then becomes, how to reasonably
allocate the cost of construction defect repairs under the circumstances where
so many parties might have contributed.
WARRANTIES
Construction projects
are most often comprised of many different products and types of work. And, it
is not uncommon for many of these materials and products to have significantly
different warranty types and durations. Grading
and drainage can have a short duration warranty period and can be adversely
impacted after the CO by HOA and homeowners, which might then affect the
structural warranty. On the other hand, manufactured products can sometimes
have 30, 40 or 50 year warranties.
EXPERTS
IN DEFECT REPAIR COSTS
Considering the many
factors that can be involved in the construction defect litigation process, and
recognizing that precise arithmetical formulas are not applicable to the cost
of repair allocation process, one can readily understand the value of analysis
and opinion of an experienced construction defects consultant and construction
defects damages expert witness.
Metropolitan Engineering, Consulting &
Forensics (MECF)
Providing Competent, Expert and Objective Investigative Engineering and
Consulting Services
P.O. Box 520
Tenafly, NJ 07670-0520
Tel.: (973) 897-8162
Fax: (973) 810-0440
E-mail: metroforensics@gmail.com
Web pages: https://sites.google.com/site/metropolitanforensics/
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