With more than 5.6 million commercial buildings and approximately 134 million housing units in the United States, plenty of windows will be replaced in the coming years. Unfortunately, that opportunity also leads to risk and liability. Inevitably, no two commercial or residential structures could possibly be constructed exactly alike. How can any reasonable installer expect to safely, consistently and efficiently replace those countless windows without facing substantial liability, since they’re following manufacturer installation instructions that don’t precisely fit or coordinate with the project specifications? In short, there’s no perfect answer.

How can you reduce risk and sustain profitability, despite inaccurate and inconsistent installation instructions? That’s on top of developing government regulations that hold you to increasingly strict guidelines and standards. And, of course, the cost of doing business continues to rise.

The Answer: Clear and Open Communication.

I recently sat down with someone we’ll call “Mr. Fenestella,” the owner and general contractor of “Replacement Windows.” Mr. Fenestella came into my office and immediately exclaimed, “I need your help!” He told me that he was recently served with papers by the prestigious plaintiffs’ firm of “Ditchem, Quick, and Hyde,” who represented a homeowner who complained her newly installed replacement windows leaked shortly after Replacement Windows installed them.

So I asked, “What guidelines or procedures do you follow when installing your windows?”

Mr. Fenestella replied, “I follow the manufacturer’s installation instructions to the letter if possible, but they don’t always conform to the type of residential or commercial unit we’re renovating. So, I normally just rely on my many years of experience and do the best I can under the conditions. What else can I do?”

Mr. Fenestella continued, “The concept or design plans we receive show the building was constructed in a certain way, but once my team gets in there, more often than not, the actual construction is nothing like the design specifications provided. Then we’re standing there with a disgruntled client with a gaping hole in the wall of their home or office, and an eventual window installation that doesn’t ‘perfectly’ harmonize the window with the wall system and drainage plane. What else should I do?”

“Luckily,” I replied calmingly, “the answer is simple. You call the manufacturer who provided the instructions, explain the situation, and use their knowledge and guidance to make an educated decision on how to address the problem at hand. It’s really that easy. I’ve handled many cases where the installer never bothered to contact the manufacturer and, had they done so most, if not all, of the installation problems could have been avoided.”

“But what should I do in this situation now, when I’ve already made my decision and the customer has already sued me?” Mr. Fenestella asked.

“That’s when you call me,” I replied. “If you find yourself at that stage, I’ll walk you through the process, providing you with peace of mind, and ensuring your assets are protected, and your family’s future is secure.”

Keep Your Promises

So how can you prevent it from ever getting to that stage? How can you reduce the size of the “potential liability umbrella” hanging over your company’s head? What should you do when you’ve tried doing the best you can, but come across a building with a square hole, with instructions telling you to use a round peg?

First, remember that you have made a promise to the customer to comply with your installer’s duty of care. You contracted with the customer to install a dependable and reliable product properly, and that is what you are required, by law, to deliver. So what exactly is the installer’s duty of care? It’s simply doing what you promised to do.

You are required to act as a reasonable window installer and to execute your contractual obligations. So ask yourself, would a reasonably prudent installation technician continue to install a window that doesn’t fit or harmonize properly to the wall system? Hopefully not. Would a technician in compliance with a reasonable standard of care place a product in the home or business of a client knowing there is a chance the window will leak or fail due to uncertainty in the process or unexpected conditions? Certainly not. A reasonable window technician would not make a rash and reckless decision. In the likely event you’re faced with unexpected circumstances, call the manufacturer. It is your first line of defense against potential liability.

The manufacturer hopefully has seen just about every problem you could possibly face on the jobsite. A reasonable contractor gains as much knowledge as possible before taking on a project, and when circumstances change midway through, a reasonable contractor readjusts his plan of attack. The generic installation instructions may be all you need to complete the current project and move on to the next one. However, the installation instructions are often filled with basic cookie-cutter installation recommendations and don’t conform to the specific building you’re currently working on. No manufacturer can create installation instructions for every type of window, wall system and the innumerable variables from project to project.

Play by Play

To analogize, as a contractor, you are the quarterback of the team. Everyone depends on you and looks to you for guidance. You are responsible for leading your team to victory. But you wouldn’t lead your team into battle without some basic plays and formations. Those plays and formations are the manufacturer’s instructions. Hopefully, they work, the project goes smoothly and all blocks and cracks are sealed accordingly. Hopefully, the quarterback contractor always has a plan. But sometimes, the game doesn’t go according to plan. At halftime, you’re faced with a big-time deficit or one of your best players gets injured. Sometimes, as the fenestration professional with boots on the ground, the on-site 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 resources who’s been there before–an instructor who’s confronted the unexpected defensive formation, who has faced a similar obstacle, and who possesses the ability to guide the quarterback through the difficult and unexpected situation. For contractors, 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 situation or a trick play that’s worked in the past. All you have to do, whether you’re a quarterback or contractor, is communicate.

The manufacturer can’t be expected to author instructions for every situation you may encounter. The playbook isn’t infinite. The manufacturer should appreciate that you are providing them with the opportunity to ensure their products are installed safely and correctly. A little time and planning can save a lot of money for everyone in the long run.

Back to the Story

By the time Mr. Fenestella sat down in my office, 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 industry. The good news is his problems were fixable, and I was able to help minimize his losses and mitigate his damages. However, his situation could have been avoided. So next time you’re on the jobsite and you encounter problematic conditions, stop and make the phone call. Call the manufacturer and ask them to help troubleshoot. Instruct your technicians to let you know when they encounter a challenging onsite condition. Don’t consider it a burden, but a blessing, which will save you money down the road. Manufacturers are happy to answer your questions, because they know clear and open communication is the key to keeping the glass half full.

Chip Gentry is a founding member of Call & Gentry Law Group in Jefferson City, Mo. He can be reached at chip@callgentry.com.



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