The Rise in EIFS Litigation

The Rise in EIFS Litigation

T. J. PARSELL, JR.
Over the past few years, there has been an increasing amount of litigation, particularly in the Southeastearn U.S., concerning
EIFS (pronounced “eefs”). EIFS is an acronym for Exterior Insulation and Finish System, an exterior cladding system for
buildings of all types. However, unlike stucco, EIFS consists of a layer of expanded polystyrene baseboard often placed on
gypsum sheathing and covered in multiple layers, including a base coat, a layer of reinforcing mesh, and topped with a
stucco-like finish coat. EIFS was originally utilized because its cost to install was less than that of traditional stucco, and it
is more versatile, which allows the architect and contractor more flexibility for aesthetic detail.
Typical EIFS Problems
Unfortunately, EIFS has not been a panacea. Over the years,
many EIFS-clad buildings have exhibited a tendency to leak. ln
others, the EIFS has become structurally unsound, resulting in
the surface cracking and water intrusion. Although such problems
are not isolated to EIFS, as many buildings clad in other
materials (such as wood, brick, and traditional stucco), also leak;
the recent exposure of ElFS-related deficiencies has made it a
target for construction lawyers representing building owners
whose buildings have begun to leak or who may be suspicious of
the structural integrity of their EIFS cladding.
To understand the litigation surrounding EIFS, one must
understand how the industry originally intended EIFS to
function as an exterior cladding. Because traditional claddings
such as wood, brick, or traditional stucco actually contemplate
water penetration behind the face of the cladding, those systems
address the problem by incorporating secondary or redundant
water barriers, such as building paper. Traditional cladding
systems also provide a means for water that does get behind the
face to be diverted out from behind the wall. Traditional flashing
or “weep holes” allow the water to exit the system without damaging
the wall.
EIFS, however, was originally intended as a “barrier” system.
As such, EIFS systems were intended to prevent water from getting
past the exterior surface. Because water was not intended to
penetrate behind the face of the EIFS, no provisions were made
for a secondary water barrier, and no manner for the water to
escape the wall (if it did penetrate), was provided.
Thus, once water has penetrated EIFS cladding, it causes
damage to unprotected wall members such as the sheathing,
underlying wood, or metal studs. Problems have compounded as
the wall elements deteriorate, sometimes resulting in the EIFS
itself weakening and breaking away from the structural members.
EIFS Litigation in a Nutshell
Typically, the major players among the defendants in EIFS
litigation are the general contractor, the applicator, the EIFS
manufacturer, the architect, and often both the window manu-
20 • Interface
facturer and window installer. Increasingly, building envelope
consultants are called in to offer expert opinions.
Often, the owner is able to establish at least technical deficiencies
in the application because EIFS is a very “applicatorsensitive”
system requiring great attention to detail in order to
comply with the manufacturer’s installation specifications and
requirements. In particular, installation of the mesh at openings
such as doors and windows is critical, as are base and finish coats
of proper thickness. The applicator must also make correct
allowances for a sealant joint at the window and door terminations.
Often, this juncture is the source of water intrusion into
the EIFS system.
As to the manufacturer and architect/designer, owners allege
that EIFS is an inherently defective system and is incapable of
reliably acting as a water barrier as intended. Manufacturers, it is
alleged, knew or should have known that even properly-applied
EIFS leak to some extent. As a result, the owners contend that
the manufacturer and architect/engineer should have contemplated
such leaks and protected the wall with a secondary water
barrier and should have provided a method of diverting the
water out of the wall.
Contractors typically defend these cases in three ways. First,
often technical deficiencies in EIFS installation have not resulted
in damage to the owner’s system. For example, forensic experts
(often building envelope consultants) observe numerous technical
deficiencies, such as inadequate thickness of finish coat
where there is only a slight deviation from the manufacturer’s
specification, that have not resulted in any problems.
Second, contractors assert that EIFS requires regular owner
maintenance, particularly at the sealant joints. While opinions
vary, some experts require re -applying sealants around windows
and doors every three to five years, which often is not done.
Finally, when appropriate, contractors concur with the owners
regarding the inherently defective nature of ElFS. Simply
stated, contractors agree that the system they applied would
have leaked no matter how it had been applied, and thus, since
its failure was inevitable, a failure to install perfectly is of no
consequence.
November 1999
The manufacturer typically joins with the
contractor in asserting the first two defenses
noted above. If those fail , the manufacturer typically
joins with the owner, asserting that its system
was improperly installed by the contractor.
Furthermore, the industry standard for applicators
allows for deviations from the specifications
set forth by the manufacturer.
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lawsuits often find themselves at odds, pointing
fingers at each other, about the causes of the
owners’ difficulties.
Needless to say, the litigation surrounding
EIFS is rather complicated and involves extensive
discovery, which requires extensive destructive
testing and analysis by all parties.
Unfortunately, given the widespread use of the
product over two decades, EIFS litigation is here
to stay for the foreseeable future. •
-ROOF HUGGER~
This article is reprinted with permission of Ogletree,
Deakins, Nash, Smoak & Stewart, PC. , a law firm with offices in Atlanta,
Birmingham, Charleston, SC Chicago, Columbia , SC Greenville, SC
Houston , Nashville, Washington D.C., Winston-Salem , and Raleigh, NC.
This article was not written to provide specific legal advice. If you have questions
about the issues raised in this article or how the law may affect you or
your business operations, you should contact an attorney to obtain advice
about the particular events in question .
ABOUT THE AUTHOR
T. J. Parsell Jr. is an attorney with the Charleston, SC
law firm of Ogletree, Deaki ns, Nash, Smoak & Stewart, P.C.
The firm has offices in Atla nta, GA; Washington, DC;
Greenville, SC Columbia, SC; Charleston, SC Birmingham,
AL; Ral eigh, NC; Nashvill e, TN; Winston-Salem, NC
Houston, TX; and Chicago, IL.
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November 1999
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