Poor-Quality Material Plus Poor Workmanship: The Confluence of Both Leads to a Catastrophic Roof Failure and Serious Litigation William A. Kirn, RRC Quest Construction Products 717 Champlain Drive, King of Prussia, PA 19406 Phone: 610-265-9222 • Fax: 610-337-1337 • E-mail: bkirn@questsc.com Edward L. McCandless, JD McCandless Law Associates, PC 37 N. Valley Road, Suite 211, Station Square Two, Paoli PA Phone: 610-640-0220 • E-mail: mccandlesslaw@hotmail.com 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 K ir n a n d M c C a n d l e ss • 2 0 7 Abstract In 2007, a building owner began experiencing significant leaking on his newly acquired office/manufacturing plant outside of Philadelphia, PA. McCandless Law Associates, PC retained Roof Technology Management, Inc. to conduct a forensic analysis and identify the cause of the leaks. A thorough roof inspection was conducted, which included a roof survey, core samples and larger roof cuts, as well as a nondestructive moisture scan. X-ray elemental analyses of the membrane yielded valuable information that aided in identifying the underlying cause of the material failure. This presentation will demonstrate the forensic value of combining traditional field investigative procedures with sophisticated technical and compositional elemental analyses in identifying the underlying causal relationship between material and installation, which combined, caused the failure. The legal aspects of this case will also be reviewed, describing the process for identifying those culpable and for achieving satisfactory restitution for the building owner. This paper is divided into two parts. The first part, by William A. Kirn, highlights the technical perspective, using standard roof consulting and roof evaluation techniques. However, this portion also describes a sophisticated analytical technique used to identify key components of the roof membrane used on this project and also to establish the causal relationship between the roof material manufacturing process and the roof failure. The second part, by Edward L. McCandless, is a narrative and summarizes the legal aspects involved in this project, providing a brief overview of the process and the ultimate legal resolution of this matter. Speaker William A. Kirn, RRC — Quest Construction Products – King of Prussia, PA William A. Kirn is manager of new innovations for Quest Construction Products. Kirn has over 30 years’ experience in the roofing industry, ranging from product and roof design, development, and materials testing; to expert witness, installation, and on-site field inspections and condition reporting. He is a Registered Roof Consultant and was on the faculty of the Roofing Industry Educational Institute. He is active in the Polymeric Materials Subcommittee of ASTM D-08 (Roofing and Waterproofing) and E-06 (Building Performance). He held the inaugural chair on the technical committee and is a past member of the board of directors of the Cool Roof Rating Council (CRR C) and a member of the Construction Specification Institute. Kirn is past president of the Reflective Roof Coating Institute. He also serves on the board of directors of the Energy Coordinating Agency of Philadelphia, a nonprofit corporation whose mission is to assist older and low-income residents with energy needs. Kirn holds a bachelor’s degree in chemistry from Temple University, a master’s in organic chemistry from St. Joseph’s University, and an MBA from Temple University. Nonpresenting Coauthor Edward L. McCandless, JD — McCandless Law Associates, PC – Paoli, PA Edwa rd L. McCand less is principal of McCandless Law Associates, PC. He is a graduate of Ursinus College and the Penn State Dickinson School of Law. McCandless was admitted to the Pennsylvanian Bar in 1975, and since that time has engaged in a diverse and extensive litigation practice involving commercial disputes, casualty losses, personal injuries, and construction defects. McCandless has tried cases in all of the federal courts and numerous of the county courts in Pennsylvania. He is AV-rated by Martindale-Hubbell. He has lectured in continuing legal education on the topic of biomechanical engineering in litigation and has recently been specially admitted to practice in the U.S. Virgin Islands to assist local counsel in a roof defect lawsuit. The principal office of McCandless Law Associates, PC, is in Paoli, Pennsylvania and with secondary offices in several locations in the Delaware Valley and in Western Pennsylvania and with a nonresident associate in San Francisco. 2 0 8 • K ir n a n d M c C a n d l e ss 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 PART 1 APP-MODIFIED BITUMEN CHEMISTRY AND MATERIAL CONSTRUCTION Polymer-modified bitumen or modifiedbitumen (MB) sheet membranes were developed in Europe in the early 1960s and have been in use in the United States since the mid-1970s. Polymer-modified roof membranes are composed of reinforcing fabrics that serve as carriers for the hot polymermodified bitumen as it is manufactured into a roll material. MB roof system membranes are composed of multiple layers, much like built-up-roof (BUR) membranes. MB roof systems typically are installed as a two-ply or three-ply system and almost always are fully adhered. Atactic polypropylene polymer- (APP ) modified bitumen membranes typically are heat-welded or torch-applied. Consumers should be cautioned that the National Roofing Contractors Association (NRCA) does not recommend torch-applying an MB membrane sheet directly to a wood deck. Generally, APP modifiers impart a “plasticized” quality to asphalt, and styrenebutadiene- styrene (SBS) modifiers impart a “rubberized” quality to asphalt. MB membranes and ethylene propylene diene monomer (EP DM), a thermoset membrane, often are confused by consumers because of colloquialisms used by roofing contractors. Both MB and EP DM membranes are sometimes called “rubber roofs.” The asphalt used to make these membranes is first “blown,” heated while injecting air into the molten material. Then the solid APP polymer is mixed with the asphalt. The high temperature allows the APP to melt and disperse readily with the blown asphalt. Calcium carbonate (CaCO3) is added to the molten composite. This acts as a reinforcing agent and “stiffens” the fabricated membrane, while the APP improves the low-temperature flexibility of the membrane. In order to prevent torch-applied MB from “blocking” (fusing together in rolls before installation), a thin “burn-off” polyethylene film is adhered to the underside of membranes in the factory. This film must be removed by heating with the installation torch in order to create a fully adhered surface. If this film is not removed, there will not be a complete watertight bond between the membrane plies. Key Findings, Conclusions, and Recommendation Key Findings The roof is a single layer of APP -modified bitumen applied over a reinforced asphalt base ply to form a built-up roof. The membrane is badly cracked over the entire roof surface. The cracks extend down to the reinforcing scrim. A nondestructive moisture scan confirmed the presence of water trapped within the roofing assembly. Conclusions 1. L eaks are caused by premature crack development in the membrane, resulting in water traversing into and through the membrane. The cracks and poor field performance were caused by the inadequate weathering characteristics of the APP membrane. This was directly attributable to the poor manufacturing techniques for the APP -modified bitumen membrane and base ply, due to improper and incomplete mixing of the CaCO3 reinforcement. The poor low-temper-ature flexibility of the membrane also is indicative of inadequate mixing of the hard, brittle CaCO3 and the asphalt/polymer matrix. 2. L eaks are also the result of improper installation of the membrane, where only the side and end laps were heated to remove the burn-off film. This is directly attributable to poor installation performed by inexperienced or incompetent roofing mechanics. Recommendation Remove and replace the existing roof. Interview With Owner and Project Coordinator The owner advised that the re-cover roof was installed in 2004. Roof leaks began shortly after the present owner purchased the building. Several attempts were made to repair the roofs; however, the leaks persisted. General Overview The building is approximately 65,000 sq. ft. covered with a smooth-surface MB asphalt roof. The roof is not coated. There are two sections on the roof. The first is a ~45,000-sq.-ft. section, attached to the second section, which is ~20,000 sq. ft. The first section has no slope, and water ponds readily; while the second section has 0.4 in./ft. slope towards the gutters. During subsequent visits to the project, all ponds had fully evaporated within 48 hours after precipitation, as required by the NRCA. Both roof sections drain to continuous gutters along the long axis of the building. The roof membrane surface is badly cracked, with cracks propagating randomly and penetrating down to approximately 50% of the membrane thickness. The side and end laps exhibit sections where there is no asphalt bleed-out from the seams as specified. Field Inspection of the Roof: Specific Observations Observations in bold print require immediate attention and compromise the watertight integrity of the roof. The numbers listed below correspond to numbers on Figure 1. 1. P aint delaminated from wall due to previous water intrusion. 2. Splits in membrane. Some of these areas had been repaired with as- Poor-Quality Material Plus Poor Workmanship: The Confluence of Both Leads to a Catastrophic Roof Failure and Serious Litigation 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 K ir n a n d M c C a n d l e ss • 2 0 9 phalt flashing cement and scrim, but these had cracked also. Nondestructive Moisture Analysis A Tramax nondestructive moisture analysis was conducted on the entire roof. Details are found on Figure 2. A reading of greater than 40% indicates that there is water trapped between the plies of the existing roof membrane. The scan shows extensive areas where water is trapped within the roofing assembly. ROOFING MATERIAL ANALYSES Core Sample A core sample was taken to determine the composition of the existing roof. The exact location is shown on Figure 1. The roof is a single ply of APP -modified bitumen that is torch-adhered to a mechanically fastened base ply. Below this, there is 2-in. isocyanurate board stock insulation. The insulation is mechanically attached to a fluted metal deck. No tests were conducted to determine if asbestos is present in either the new or existing roof. All samples taken showed that the polyethylene release film attached to the MB at the time of manufacture had not been melted 2 1 0 • K ir n a n d M c C a n d l e ss 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 Figure 1 – Roof overview. Figure 2 – Moisture scan. off during the installation of the product, as specified. This prevented the complete adhesion of the top ply membrane to the base ply and compromised the watertight integrity of the roofing assembly. Membrane Analysis A sample of the APP – modified bitumen membrane was taken to the Roof Technology Management laboratory and tested for low-temperature flexibility in accordance with ASTM D522. The product literature claims the membrane will pass a low-temperature flex mandrel bend at -25ºC. The product failed at -10ºC. This product lacks the low-temperature flexibility requirements for the geography where the roof was installed. Cracks in the membrane would be expected where there is poor low-temperature flexibility. Photomicrographs were taken of the cracked MB membrane. Figure 3 shows a 10x magnification of the cross section of the membrane. The membrane is 0.2 cm thick (0.08 in.), and the crack is clearly noticeable. Moreover, the crack has progressed down to the reinforcing scrim. This is noteworthy, because as water fills the crack, it can “wick” along the reinforcing scrim and wet the base ply of the membrane assembly. The photomicrograph in Figure 4 was taken at 60x. Note the depth of the crack, which extends to the reinforcing scrim; also note delamination of the asphalt layer above the reinforcement section below. Under 60x magnification, small white areas are observed. These are believed to be CaCO3 and are evidence of incomplete mixing of the asphalt, polymer, and CaCO3 matrix. This demonstrates poor manufacturing and quality control by the manufacturer. Incomplete mixing results in voids where water can traverse vertically through the membrane. Downward movement compromises the watertight integrity of the roof and also allows the CaCO3 to exhibit white staining on the roof surface. Base Ply Evaluation The base ply was purchased from the same manufacturer. This was revealed through legal discovery and depositions. It is notable that the scrim is poorly wetted out, and there is poor mixing of what was believed to be CaCO3 into the asphalt matrix. This is evidenced by the white powdery residue seen on the surface of the MB membrane. Also, the outlines of the individual sections of base ply are observed as white lines on the surface of the roof, observed during roof inspection. Figure 5 shows the underside of the roofing assembly sample, with severe deterioration of the base ply and the PE burn-off layer still intact. Photomicrographs were taken of the base-ply layer. Figure 6 is a 10x magnification of the cross sections of the membrane. It is noteworthy that there are significant amounts of what is believed to be undispersed CaCO3 in the matrix. This again is evidence of poor manufacturing and quality control. The CaCO3 creates channels where water can move through the waterproofing membrane and cause leaks to develop within the building. Air voids in the matrix are also easily observed. These areas serve as conduits for water to travel through the membrane and cause leaks. Clauser Engineering Consulting Report Craig Clauser Engineering Consulting Inc. was retained to conduct more sophisticated optical and scanning electron microscope and elemental analyses to identify the exact composition of the white powder. Sample #1’s top surface is cracked and exhibits cracking down to the reinforcing scrim. The scrim is in the approximate cen-ter of the membrane. Sample #1 is composed of three layers: the top thick layer, the APP -modified bitumen membrane with a thin polypropylene film, and the thick base-ply underlayment (Figures 7-9). Sample #2’s top surfaces are cracked and exhibit cracking down to the reinforcing scrim. The scrim is in the approximate center of the membrane. The underside of 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 K ir n a n d M c C a n d l e ss • 2 1 1 Figure 3 – This is a photo of a 10x magnification of the cross section of the membrane. Figure 4 – This photomicrograph was taken at 60x. Note the depth of the crack, which extends to the reinforcing scrim, and delamination of the asphalt layer above the reinforcement section below. Figure 5 – This is a photo of the underside of the roofing assembly sample, showing severe deterioration of the base ply and the PE burn-off layer still intact. Figure 6 – Photomicrograph showing white residue trapped in membrane. Figure 7 – Photograph of Sample #1 shows the incomplete burn-off of the PE layer. this sample also exhibits a white residue (Figures 10-13). The key findings from the investigation are: 1. The optical and scanning electron photomicrographs (pictured here) show white agglomerates in the cross sections of the samples. 2. These undispersed aggregates caused the membrane to weather poorly and develop surface cracks prematurely, leading to leaks in the membrane. SCANNING ELECTRON MICROGRAPHS AND ELEMENTAL ANALYSES X-ray fluorescence (XRF) is the emission of characteristic “secondary” (or fluorescent) 2 1 2 • K ir n a n d M c C a n d l e ss 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 Figure 8 – Photograph of top view of Sample #1 showing white deposits exuding from the cracks. Figure 9 – Photograph of top view of Sample #1 showing white deposits exuding from the cracks. Figure 10 – Photograph of Sample #2. Figure 11 – Optical photomicrograph of Sample #2 surface showing white exudate. X-rays from a material that has been excited by bombarding with high-energy X-rays or gamma rays. The phenomenon is widely used for elemental analysis and chemical analysis, particularly in the investigation of metals, glass, ceramics, and building materials; and for research in geochemistry, forensic science, and archaeology. The use of a primary X-ray beam to excite fluorescent radiation from the sample was first proposed by Glocker and Schreiber in 1928. Today, the method is used as a nondestructive analytical technique and as a process control tool in many extractive and processing industries. In principle, the lightest element that can be analyzed is beryllium (Z=4), but due to instrumental limitations and low X-ray yields for the light elements, it is often difficult to quantify elements lighter than sodium (Z=11) unless background corrections and very comprehensive interelement corrections are made. It was believed that the undispersed pigment was CaCO3, which can easily be detected by XRF. Thus, this instrumental method was selected to identify the exact composition of the undispersed pigment. See Figure 14. The key findings are: 1. The white deposits on the surface of the APP membrane, within the membrane, and between the underside of the membrane and burn-off layer, are CaCO3. 2. The agglomerates in the cross section of the membrane are undispersed CaCO3. 3. The vertical cracks contain both undispersed CaCO3 that was incompletely mixed during manufacture and dirt deposited on the roof during its service life. Conclusions 1. The undispersed CaCO3 aggregates present in the APP membrane caused the membrane to split, crack, and leak prematurely shortly after installation. 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 K ir n a n d M c C a n d l e ss • 2 1 3 Figure 12 – Optical photomicrograph of cross section of Sample #2 showing surface crack and undispersed pigment. Figure 14 – Elemental analyses were conducted on the samples. Figure 13 – Optical micrograph of underside of Sample #2. 2. The CaCO3 aggregates lack the ability to tolerate any movement in the membrane and contributed to accelerated crack propagation into the membrane. Figures 15-18 detail the elemental analysis of the white aggregate in the cross section. It is composed of undispersed CaCO3. The XRF energy causes the CaCO3 to appear white. This is conclusive proof that the product was improperly formulated. PART 2 Our client was enjoying the commercial building boom of the early 21st century. Orders were coming in, honors were accumulating, and the gleaming glass and metal architectural elements the client manufactured and installed were the images that met the public in some of the most prestigious and ambitious projects in New York City. The movers and shakers of the world were passing through our client’s products on a daily basis on their way to running the world. Growing prestige and regular acclaim meant more and bigger orders. An expanded manufacturing facility was needed. A suitably sized and adequate structure existed just downstream from where Washington made his Christmas crossing to attack the king’s forces in Trenton. Some industrial development assistance was arranged, and while the interior modifications would be done by the new owner, the seller was required by the deal to have a new flat roof with a transferable warranty put on the structure. The cavernous first floor was devoted to storage and manufacturing. A mezzanine level was created to house the engineering, drafting, accounting, sales, and management functions. A new full-height entry of stainless steel and glass demonstrated some of the company’s prodigious capabilities. Flights of cantilevered stainless steel steps led to the office space where every public surface was a sample of the prodigious capabilities this company had. Above all of this was the roof. It was primarily a flat, built-up roof with only limited areas of any significant slope. There were just a few penetrations for HVAC equipment and some elevator mechanicals. Ironically, but not unexpectedly, the new owner, a major player in a construction-related business, did not inquire of the new roof’s specifications, engage a consultant, or have a representative present to see how the roof was installed. Businessmen focus on what makes them money. Lawyers and accountants clean up the distractions. The weather in suburban Philadelphia is such that most residents complain about it 345 days a year. The winters are cold but infrequently below zero. The frequent freeze-thaw cycle turns the best roadways to moonscapes in just a few years. Snows can be heavy. Ice storms are frequent. 2 1 4 • K ir n a n d M c C a n d l e ss 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 Figure 15 – This photo details the elemental analysis of the white aggregate in the cross section. It is composed of undispersed CaCO3. The XRF energy causes the CaCO3 to appear white. Figure 16 – X-ray fluorescence micrograph showing CaCO3. Spring usually passes without much notice as winter transforms almost instantly into the dog days. Summers are blistering hot. Sometimes there are droughts. Sometimes there are flash floods. A tropical storm or hurricane is usually good for at least one disaster declaration by the governor each year. Even under those environmental conditions, the roofing materials manufacturer was willing to offer a 12-year waterproof guarantee with honest-to-goodness fine print that pretty much advised the reader to forget everything in the regular print. Since the roofing contractor was “approved,” at the conclusion of installation, a material and labor guarantee was issued by the manufacturer. This written guarantee obligated the manufacturer to replace or repair any part of the membrane necessary solely in order to stop water leaks resulting from deterioration of the membrane, bare spots, ridges, and splits not caused by workmanship on the part of the manufacturer’s approved roofing contractor. Exclusions to the guarantee included ponding, traffic of “any nature” on the roof, and, of course, failure of the (approved) roofing contractor to follow manufacturer’s installation specifications. The roof was described in the guarantee as aluminum-coated. It never was. The installation of the roof was completed in March 2004. By August of the same year, the new owner was calling the contractor to address the leaks that had already arisen. The contractor was responsive initially. The manufacturer donated 30 rolls of additional membrane to try to address the issues that were developing. After the contractor stopped taking calls, the owner’s employees made the occasional emulsion application where they thought the leaks were. The new owner’s attempt to present a warranty claim directly to the manufacturer was mostly ignored on the pretext of inadequate information. Although the owner was making do with the occasional repair, at least two storm events caused major interior problems at the mezzanine level. Every rainfall of any significance was producing leaks. Machinery and materials were moved or covered. Chalk marks, characteristic of “scenes of the crime,” dotted the first floor to try to help locate stopgap patches for the roof. Our law firm was retained to see what we could do to get the problem fixed. The manufacturer responded to our initial letter with an explanation that the guarantee did not apply because there was ponding, the roof was not aluminum-coated, and there had been foot traffic across the roof. On our first visit to see the roof, we brought along an architectural and construction consultant. Access to the roof, through a hatch near the rear wall, was reminiscent of a Gemini launch preparation. Climb the work platform to board the scissors lift, over the rail of the scissors lift 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3 K ir n a n d M c C a n d l e ss • 2 1 5 Figure 18 – X-ray fluorescence micrograph showing CaCO3. Figure 17 – X-ray fluorescence micrograph showing CaCO3. for a short ride towards the rear wall, raise the scissors lift to clear something, forward a bit more, duck beneath the pipes, and when we arrive at the rear wall, set up an aluminum stepladder on the scissors lift and climb through the hatch while sliding under some wires. Foot traffic on the roof? It was pretty clear that no one was taking smoking breaks up there. Two lawyers and our consultant were members of the first crew. This author’s partner was born with more sense, and it was his last trip to the roof. Our consultant was fired because he thought that inadequate slope explained all of the problems with the roof. The roof had been in place a little more than two years when we first took a look. Most of it was in visibly poor shape. Large expanses were alligatored, there were ridges with apparent cracks, and the color of the surface was dull and uneven. By comparison, the section that had been re-covered with the 30 rolls of gift membrane looked sound, tight, and durable. The rest of this nearly 50,000-sq.-ft. field was broken up, uneven, and, curiously, marked with white spots and stripes. I had thought that these white stripes were something akin to the building “bleeding” from the cracks as venting vapor dragged some sort of material with it. Our architectural consultant said it was all a slope issue—hard to believe, but even more importantly, a theory that we could take nowhere. The purpose in any civil action is not winning. It is winning something you can collect. At the time of our first inspection, we suspected that the membrane manufacturer might be the only worthwhile defendant. If we could get around the limitations of the written guarantee, then we might find a way to find a manufacturer at fault for defects in the membrane or perhaps defects in the design of the system. The roofing system was not a promising thought. There was absolutely nothing unusual about the design of this APP -modified bitumen builtup flat roof. The distributor of the material had already gone out of business. It had no insurance. The roofing contractor had shown very little interest in what we were doing in anticipation of litigation, and we suspected that it, as well, was uninsured and perhaps on its way to a bankruptcy filing. We were right about both. The membrane manufacturer held some promise, but it was a Saudi Arabian company with just one independent sales representative in the United States. It had insurance through a Saudi insurer that maintained no presence in the United States. The manufacturer’s representatives had already parried with theories that the roof had failed because of lack of an aluminum coating, inadequate slope, poor installation, or foot traffic across it. We could not blame the membrane manufacturer for the roof slope. We could not blame the manufacturer for how the roof was put down. Even if we were to find a problem with the membrane materials, its manufacturer might successfully defend our claim by blaming such other things. We pushed our architect off his slope and started looking for a more specialized consultant. There were a lot of folks who called themselves experts. We decided to stay away from anyone whose expertise was based upon work as a contractor. We were lucky to find Bill Kirn. Kirn’s approach to roofing from a chemistry perspective seemed appropriate. The visual appearance of the failed roof struck us as a possible chemical issue. When we went to the roof with Kirn to inspect and take larger samples, we learned just how bad every facet of that roof really was. In addition to the deteriorated appearance of the membrane surface itself, when we cut down, we found that the membrane was applied by heating along the edges of the roll material rather than across the width of the underside. That could mean that the membrane manufacturer could possibly explain everything as an installation problem. On the other hand, this was an unexpected gift. Since the contractor had not heated the center section of any of the material on the roof, every piece still had the film backing fully intact with the manufacturer’s logo plainly repeated every few inches. We learned to appreciate this gift as the suit progressed. The proof we were going to need to get anything out of the manufacturer would require the elimination of other processes other than the quality of the roofing material as causes of leaks, avoiding the excluded events set forth in the written guarantee, or finding some legal way around the limited remedies provided by the written guarantee. We needed to minimize the reduction of the claim for proration of the life expectancy of a roof of proper materials. On the legal question about whether the limited remedies provided by the written guarantee would apply, we found case law to support the argument that if the objective of the written guarantee was to ensure a roof that did not leak (which it was), then if the remedies provided in the guarantee failed to achieve the central purpose of that guarantee, those limitations were legally inapplicable. That issue resolved, we still needed to prove why this roof was leaking. As it turned out, the answer to those questions, the elimination of other causes, and the foundation for our contention that this roof was going to leak— regardless of how badly it was installed— were all in those white stripes and the logos beneath them. The roofing manufacturer retained a qualified expert who performed a visual analysis of several pieces of the deteriorated roof as it was being removed for replacement. He looked at the surface area with a microscope but did not do any chemical analysis. He concluded that the surface cracking was caused by ultraviolet exposure that could have been avoided with an aluminum coating. He relied upon the statement of the manufacturer’s representative that the formula for this membrane material never included CaCO3 and commented, “The source of the calcium carbonate remains unidentified at this time.” Of course, CaCO3 is a material some manufacturers add to this type of roofing material. Whether CaCO3 was ever in the formula, it certainly was in our client’s roof, and there was no claim whatsoever that this roof did not come from the sole distributor in the United States. The issue of whether or not the building owner or the installer should have been faulted for not applying an aluminum coating was a false issue. Areas covered with the 30 free rolls the manufacturer’s representative donated to try to help cure the early leaks were not much older than the rest of the roof, and those sections looked great. They were not cracked in the least bit. The risk of going to trial was not losing so much as winning, but then trying to collect in Saudi Arabia. We were able to agree to take the matter to mediation. The matter concluded by settlement (and payment) for a sum in excess of $200,000. 2 1 6 • K ir n a n d M c C a n d l e ss 2 8 t h R C I I n t e r n a t i o n a l C o n v e n t i o n a n d T r a d e S h o w • M a rc h 1 4 – 1 9 , 2 0 1 3
