LegalEase  
Talk it Through  
Communication is Key for Renovation Projects  
b y C h i p G e n t r y  
ith more than 5.6 million cedures do you follow when installing So how can you prevent it from ever  
commercial buildings and your windows?” getting to that stage? How can you re-  
Mr. Fenestella replied, “I follow the duce the size of the “potential liability  
housing units in the United States, manufacturer’s installation instruc- umbrella” hanging over your compa-  
plenty of windows will be replaced in tions to the letter if possible, but they ny’s head? What should you do when  
the coming years. There is plenty of don’t always conform to the type of res- you’ve tried doing the best you can, but  
business and opportunity to go around. idential or commercial unit we’re ren- come across a building with a square  
Unfortunately, that opportunity also ovating. So, I normally just rely on my hole, with instructions telling you to  
leads to risk and liability. Inevitably, no many years of experience and do the use a round peg?  
W
approximately 134 million  
two commercial or residential struc- best I can under the conditions. What  
tures could possibly be constructed else can I do?”  
exactly alike. How can any reasonable Mr. Fenestella continued, “The con-  
First, Keep Your promises  
Remember that you have made a  
installer expect to safely, consistently cept or design plans we receive show promise to the customer to comply  
and efficiently replace those countless the building was constructed in a with your installer’s duty of care. You  
windows without facing substantial certain way, but once my team gets in contracted with the customer to in-  
liability, since they’re following man- there, more often than not, the actual stall a dependable and reliable product  
ufacturer installation instructions that construction is nothing like the design properly, and that is what you are re-  
don’t precisely fit or coordinate with specifications provided. Then we’re quired, by law, to deliver. So what ex-  
the project specifications? In short, standing there with a disgruntled client actly is the installer’s duty of care? It’s  
there’s no perfect answer.  
How can you reduce risk and sus- home or office, and an eventual win-  
with a gaping hole in the wall of their simply doing what you promised to do.  
You are required to act as a reason-  
tain profitability, despite inaccurate dow installation that doesn’t ‘perfectly’ able window installer and to execute  
and inconsistent installation instruc- harmonize the window with the wall your contractual obligations. So ask  
tions? That’s on top of developing gov- system and drainage plane. What else yourself, would a reasonably prudent  
ernment regulations that hold you to should I do?”  
increasingly strict guidelines and stan- “Luckily,” I replied calmingly, “the stall a window that doesn’t fit or har-  
dards.And, of course, the cost of doing answer is simple. You call the manu- monize properly to the wall system?  
installation technician continue to in-  
business continues to rise.  
facturer who provided the instructions, Hopefully not. A reasonable window  
explain the situation, and use their technician would not make a rash and  
knowledge and guidance to make an reckless decision. In the likely event  
Clear CommuniCation  
I recently sat down with someone educated decision on how to address you’re faced with unexpected circum-  
we’ll call“Mr.Fenestella,”the owner and the problem at hand. It’s really that stances, call the manufacturer. It is  
general contractor of “Replacement easy. I’ve handled many cases where your first line of defense against poten-  
Windows.” Mr. Fenestella came into the installer never bothered to contact tial liability.  
my office and immediately exclaimed, the manufacturer and, had they done  
The generic installation instructions  
I need your help!” He told me that he so, most, if not all, of the installation may be all you need to complete the  
current project and move on to the  
was recently served with papers by the problems could have been avoided.”  
prestigious plaintiffs’firm of “Ditchem,  
“But what should I do in this situa- next one. However, the installation in-  
Quick, and Hyde,” who represented tion now, when I’ve already made my structions are often filled with basic  
a homeowner who complained her decision and the customer has already cookie-cutter installation recommen-  
newly installed replacement windows sued me?” Mr. Fenestella asked.  
dations and don’t conform to the spe-  
leaked shortly after Replacement Win-  
dows installed them.  
So I asked,“What guidelines or pro- walk you through the process.  
“That’s when you call me,” I replied. cific building you’re working on.  
“If you find yourself at that stage, I’ll  
continued on page 16  
14  
USGlass, Metal & Glazing | October 2016  
www.usglassmag.com  
LconetignuaedlEase  
Play by Play  
tle without some basic plays and for- plan. But sometimes, the game doesn’t  
To analogize, as a contractor, you mations. Those plays and formations go according to plan.At halftime,you’re  
are the quarterback of the team. Ev- are the manufacturer’s instructions. faced with a big-time def cit or one of  
eryone depends on you and looks to Hopefully, they work, the project goes your best players gets injured. Some-  
you for guidance. You are responsible smoothly, and all blocks and cracks times, as the fenestration professional  
for leading your team to victory. But are sealed accordingly. Hopefully, the with boots on the ground, the on-site  
you wouldn’t lead your team into bat- quarterback contractor always has a conditions don’t match the paper trail  
of construction documents. You take  
the window out, and the framing and  
drainage planes look nothing like what  
you expected.  
That’s why the quarterback has a  
coach. A more experienced person  
with a surplus of knowledge and re-  
sources who’s been there before—an  
Bold Visual Effects  
NEW Precision Series wall panels create dramatic shadow lines  
instructor who’s confronted the un-  
expected defensive formation, who  
has faced a similar obstacle, and  
who possesses the ability to guide  
the quarterback through the difficult  
and unexpected situation. For con-  
tractors, the manufacturer is your  
coach. Call them. Email them. Talk  
to them. Look to them for guidance.  
They probably have the play that can  
bail you out of a fourth-and-long sit-  
uation or a trick play that’s worked in  
the past. All you have to do, whether  
you’re a quarterback or contractor, is  
communicate.  
back to the Story  
Arlington Community School, Jacksonville, FL  
Architect: Ebert Norman Brady  
Installing contractor: Thorne Metal Systems  
Profile: HWPC wall panel  
By the time Mr. Fenestella sat down  
in my off ce, unfortunately, it was too  
late. A simple call to the manufacturer  
could have saved him thousands in  
damages and fees, not to mention his  
reputation and good name in the in-  
dustry. The good news is his problems  
were f xable, and I was able to help  
minimize his losses and mitigate his  
damages. However, his situation could  
have been avoided. n  
Color: Berkshire Blue  
HWP 12-B  
HWP 12-S  
HWP 16-B  
HWP 16-C  
HWPC  
WITH OR WITHOUT CLIP  
WITH OR WITHOUT CLIP  
WITH OR WITHOUT CLIP  
WITH OR WITHOUT CLIP  
BERKSHIRE BLUE  ENERGY STAR  
Precision Series wall panels provide design flexibility with easy,  
cost-effective, horizontal or vertical installation. Panels are  
available in 33 ENERGY STAR® colors.  
C h i p G e n t r y is  
a founding member  
of Call & Gentry Law  
Group in Jefferson City,  
Mo. He can be reached  
at chip@callgentry.com.  
PAC-CLAD.COM  
MD: 1 800 344 1400 | TX: 1 800 441 8661 | GA: 1 800 272 4482 | MN: 1 877 571 2025  
| IL: 1 800 PAC CLAD  
16  
USGlass, Metal & Glazing | October 2016  
www.usglassmag.com