The Letter of The Law: February 2014
IN THIS ISSUE:
By: Paul McBride
Approximately 80% of construction defect lawsuits which we defend involve stucco-clad houses. Depending on the plaintiffs’ expert, alleged stucco defects usually comprise anywhere from 20% to 50% of the total cost of repair. Therefore, it is important for those involved in defending stucco subcontractors to understand, and so be better able to defend, stucco defect allegations. In this article, we will discuss the two most common, and thus most expensive, defect allegations we encounter when defending stucco claims. Those allegations are improper building paper installation and stucco cracks.
A. Improper Building Paper Installation
Stucco installation involves more than just stucco. The stucco subcontractor also installs building paper over the framing before installing stucco. In fact, it is this part of the stucco subcontractor’s scope of work, the installation of building paper, which gives rise to the greatest proportion of a stucco subcontractor’s potential liability in most construction defect lawsuits.
Whenever the plaintiffs’ experts claim that a stucco-clad house suffers from water intrusion at or around window openings – and this claim is made in virtually every case – the allegation is allocated to the stucco subcontractor. The stucco subcontractor is blamed for what are called “building envelope leaks” because the building paper is the primary weather-resistive barrier for the home. It is the home’s last line of defense against water that gets behind the stucco. Water that gets behind the stucco hits the building paper and drains down it, exiting the house at the weep screed at the base of the wall.
The two most common defects by which water gets through building paper and into a home are reverse laps and unsealed staple penetrations. If the stucco subcontractor installs the building paper over the sill flashing paper, rather than tucking it under the sill flashing paper, he creates a “reverse lap” that allows water a direct route into the framing cavity below the window. If his lath staples miss a stud, he will tear the paper and create another potential avenue for water intrusion. While it is impossible for the stucco subcontractor to hit the studs with his staples every time, competent stucco workmen inspect the building paper after lath installation and caulk and seal any staple penetrations through the building paper.
If you are defending the stucco subcontractor in a construction defect lawsuit, you should look, first, at the windows section of the plaintiffs’ defect report and cost of repair estimate. This is the section where the plaintiffs’ expert will allege water intrusion that will be allocated to your stucco subcontractor. A typical description is “water intrusion at sill membrane.” When you turn to the corresponding cost of repair, you will typically see that the plaintiffs’ expert calls for tearing off the stucco and re-installing the window flashing paper and building paper at most, if not all, of the windows at each home. The corresponding cost for just this repair will typically range from $12,000 to $20,000 per home, which explains why this particular defect allegation is such a large portion of an overall cost of repair in most construction defect cases.
When you see this allegation in a defect report, your first question should be “Did the plaintiffs conduct destructive testing?” If they have not removed drywall below windows and spray-tested the windows, they have no basis for claiming that the building paper is improperly installed and must be repaired.
It is surprising how often plaintiffs’ experts raise the allegation of water intrusion through building paper without conducting destructive testing. In fact, most plaintiffs’ firms nowadays do not conduct destructive testing, due to its expense. However, their experts continue to make this allegation. They do so to puff up the cost of repair estimate and therefore, increase pressure on the insurance carrier defending the stucco subcontractor to offer more money. It is important to bear firmly in mind that without destructive testing, this allegation is worthless. Just cross it off the cost estimate when you evaluate the claims against your stucco subcontractor.
What about when the plaintiffs do perform destructive testing? First and foremost, the party defending the stucco subcontractor should always retain an expert to observe the plaintiffs’ destructive testing. Viewing the plaintiffs’ photographs after the fact is no substitute for having your own expert on the spot. Your expert can tell you whether there is a true problem with the stucco subcontractor’s work. You should never rely on the plaintiffs’ experts’ interpretations.
When the plaintiffs perform destructive testing, the first question you should ask is “Is there any evidence of prior water intrusion below the windows?” If the plaintiffs’ expert removes drywall below the window and sees that the framing is clean and dry, and the house has also been through several rainy season cycles, the stucco system is obviously doing its job. Even if the building paper is reverse-lapped, or there are unsealed staple penetrations through the paper, if no water has gotten in, this is a “no-harm, no-foul” scenario.
The second question you should ask is, “What happened when the spray rack was turned on?” Typically, the spray rack runs until water enters the home, or until 15 minutes have passed without water entering. If no water enters the building after 15 minutes of spray-testing, the house has successfully withstood a simulated rain event that is orders of magnitude greater than anything it will encounter in the real world. (The spray test puts the equivalent of 8″ of rain per hour on the home; no rainfall this severe has ever been measured anywhere on earth.) Nevertheless, it is not uncommon for plaintiffs’ experts to report that a window has “failed,” even though no water entered during the spray test. Instead, they cite technical errors such as reverse laps or torn building paper. Again, if no water entered during the spray test, these errors should fall under the category of “no harm, no foul.”
Finally, if water enters at a reverse lap or an unsealed staple penetration, you should check to see if the plaintiffs’ expert has extrapolated this occurrence to additional homes in the case. Just as one robin does not make a spring, one reverse lap does not make a calamity. In our experience, most stucco subcontractors know better than to reverse-lap building paper at windows; when this situation is found, it is usually an anomaly. Only once, in 20 years of defending stucco subcontractors, have I have seen a project where all the windows were reverse-lapped. In that case, the insurance carrier for the stucco subcontractor paid policy limits to settle the claims.
B. Stucco Cracks
By far the most common defect allegation relating to stucco itself, as opposed to the underlying building paper, is stucco cracking. This defect allegation is such a preponderant portion of the typical stucco defect cost of repair estimate that we will not discuss any of the less common, and thus less expensive, stucco defect allegations.
The most important thing to understand about stucco cracks is that stucco cracking is common. This is both a common sense observation and a perfectly valid legal defense. All stucco walls and ceilings are susceptible to cracking, no matter how good the structure, the design, engineering, mix, application, and site supervision. Therefore, when faced with an allegation that stucco cracking is a construction defect, the pertinent inquiry should be whether the cracking is excessive.
The California Building Performance Guidelines for Residential Construction contain specific and easily applied standards for determining whether stucco cracking is excessive. It is excessive in two situations:
First: The stucco crack is over 1/8″ thick.
Second: The stucco crack is less than 1/8″ thick, but the cracks cover more than 33% of the surface area of one square foot of stucco. This type of stucco cracking is called “spider web cracking.”
The Plaster Council, in its Technical Bulletin No. 4, “Crack Policy,” adopts a more stringent stucco crack standard than the California Building Performance Guidelines. According to the Plaster Council, stucco cracks wider than 1/16″, i.e. the width of a penny, should be repaired. Any cracks smaller than 1/16″ are considered “hairline” cracks, and should not be repaired. In fact, repairing hairline cracks does more harm than good. As the Plastering Contractors Association of Southern California points out in its own technical bulletin on stucco cracks, “Small cracks will not accept material and the resulting patch will detract from the natural beauty of the stucco and will serve no useful purpose.”
Even if we apply the more stringent standard of 1/16″ to judge when stucco cracks should be repaired, we find that the vast majority of stucco cracks shown in a plaintiffs’ expert’s photo book do not meet this standard. A useful mental exercise when viewing the plaintiffs’ photographs of stucco cracks is to ask, “Could I fit a penny into this crack?” If the answer is “No,” the crack is hairline, and does not merit repair.
In our experience, approximately 90% of the stucco cracks shown in any given plaintiffs’ photo book are hairline. Accordingly, we reduce the plaintiffs’ cost of repair estimate for stucco cracks by 90% to arrive at what we consider the legitimate cost of repair for stucco cracks.
Another factor to bear in mind when evaluating stucco cracks is that, even when the cracks are excessive, the fault seldom lies with the stucco subcontractor. Typically, we accept responsibility only for spider web cracks, which are usually due to improper stucco mix, and therefore fall under the stucco subcontractor’s responsibility. However, most stucco cracks are due to building movement, not stucco mix. Indeed, the wider the stucco crack, the less likely it is to be the fault of the stucco subcontractor. Instead, some force is being exerted on the building which is cracking the stucco. There is nothing the stucco subcontractor can do to control or resist this force. Put another way, if you removed and replaced the stucco without addressing the underlying problem causing the building to move, the stucco crack would simply recur. Accordingly, whenever you are asked, as the representative of the stucco subcontractor, to pay to repair stucco cracks, ask what your stucco subcontractor should have done differently to prevent the crack from occurring. The most typical response you will receive to this question is a blank stare.
In conclusion, if you understand and apply the defenses to building paper installation and stucco cracking defect allegations we discuss in this article, you will drastically reduce your stucco subcontractor’s liability exposure. Knowledge of these issues will make you a much more effective advocate when you negotiate on behalf of your stucco client or insured.
Considerations of space prevent us from a fuller discussion and citation of stucco technical literature that underpins our analysis. Please contact the author for copies of the pertinent literature.
By: Hoang-Anh Zapien
Once a bad relationship or divorce finally comes to an end, parents often yearn for the return of a “normal” life with a companion. In this quest to move on, parents may rush into another relationship. As difficult as dating is, it is even more difficult and complicated when there are children involved. Above all else, parents must first consider how their children will be affected by the introduction of a new partner. Rushing someone into your childrens’ lives will not benefit any of the parties involved. An introduction at the appropriate time is the key to success.
Even long after a divorce children often still harbor the hope that their mom and dad will get back together. Seeing a parent with a new partner destroys this fantasy. Therefore, it is essential to TAKE THINGS SLOW. There is absolutely no need to introduce your new partner to your children before the time is right. If this person is as wonderful as you think they are, they will be patient and understand your children’s need to adjust. Rather than forcing this new person on your children, allow them to develop their own relationship with the new partner. Your children will then be able to discover the new partner’s merits.
Before introducing your children to someone new that you are dating, keep in mind how your children are reacting to the divorce. If your children are still exhibiting signs that they are angry or sad that their family unit has dissolved, introducing a new partner will only cause them to resent your new partner. Allow them time to grieve, and help them to work through the effects of the divorce before forcing them into a new situation. It is important to remember that children are innocent bystanders to your relationships. Also remember that there is always the risk that the new relationship will not work out. Breaking up with a new partner will be even more complicated if your child begins to form a bond with that person.
Talk to your children. It is important to explain that not every dating relationship will end in marriage. Ask them for their thoughts and feelings about meeting a new partner. They might be excited about meeting your new partner, or they may be anxious about allowing a stranger into their lives. As they express their hopes, concerns and fears, help them see the situation clearly.
Dating after divorce can be tricky, but if you take your time and navigate carefully, it can be a win-win for everyone.
NEWS AND EVENTS:
Michelle Philo Appointed as Orange County Bar Association Young Lawyers Division Social Committee Chair
Congratulations to Michelle Philo, Kring & Chung, Associate, has been appointed to serve as the 2014 Social Committee Chair for the Orange County Bar Association Young Lawyers Division (OCBA YLD). The Social Committee Chair is responsible for chairing a committee of young lawyers, overseeing the development of networking opportunities, and providing opportunities for young lawyers to engage in the legal community. Events in the past have included happy hour mixers, karaoke, destination events such as Del Mar races, co-hosted events with local affiliate bar associations, and the annual holiday party. Philo is honored to serve in this capacity as she believes the connections made as young lawyers can greatly assist in the development of a young attorney’s networking events for the 2014 year.
Upcoming Score Seminar – Avoiding Employment Related Litigation
Description: Here’s your chance to get input regarding your business legal employment questions. This workshop covers the potential pitfalls of employment issues and how these mistakes can lead to costly litigation.
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