When Disaster Strikes: Document and Data Retention is Key

By Charles A. “Chip” Gentry

Two years ago, I wrote an article educating readers about the “Act of God” defense available to fenestration industry professionals in the wake of hurricanes Harvey, Irma and Maria (see page 16 of the October 2017 USGlass). Unfortunately, extreme weather and record-breaking storms continue to be the norm as opposed to the exception. Several weeks ago, Hurricane Dorian completely flattened parts of the Bahamas and caused billions of dollars in damage up and down the East Coast of the United States. As weather phenomena we used to describe as unprecedented continues to become more commonplace, it’s more important now than ever for fenestration industry professionals to back up their documentation and data, particularly in areas susceptible to devastating hurricanes.

DOCUMENT EVERYTHING

Thankfully, the foundation of most structures survived the recent storm, but countless windows did not. As insurance adjusters move into hard hit markets, the resiliency and effectiveness of hurricane-resistant glazing and other storm and wind compliant promises will undoubtedly be tested, retested and tested again. Such analysis and inquiry will inevitably lead to claims, lawsuits, and yes, litigation. As my coastal-based clients can attest, my candid and succinct advice has always remained the same: document
everything, back up your data and ensure to the fullest extent possible that your products meet your advertised specifications.

Project owners consult architects who want to design the latest and greatest commercial and residential projects that enable visitors and purchasers to experience oceanic views. In turn, general contractors promise to locate conforming fenestration products. They then shop the market, or reach out to whomever they have a history with, to find the products that meet their requested specifications. If Mother Nature cooperates, all is well. However, when she unleashes her fury, the chickens come home to roost.

SUCCESSFUL DEFENSE

When disaster strikes, what I collectively describe as “unemotional documents” control the day. Math, calculations and testing results are the pillars of a successful defense of your company’s products. Hired experts and paid professionals can argue until they are blue in the face against assertions that your company “makes the best windows money can buy.” When it comes to establishing a solid defense, specification compliance is king.

Remember, advertise what you manufacture, but more importantly, manufacture what you advertise. It is not a matter of if the next big storm will hit, but when. A letter to the project owner from your company expressing the excellence of your products is nice for the papers and the company holiday card, but it will do you no good in a court of law. Science and math are the key to a successful fenestration defense. If your company
operates in a state along the coast, or if your company ships products to states susceptible to devastating storms, make sure your products comply with required standards, codes, and specifications. Then, make sure to document and back up all of your company’s internal testing, verification, and compliance to prove your products do what you say they will do. Your installers, general contractors and, perhaps most importantly, your fenestration attorney, will be extremely grateful when the next Dorian hits.

Charles A. “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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