Associate Brian Kernan is published in the recent CLM Construction Claims magazine

Associate Brian Kernan is published in the recent CLM Construction Claims magazine

Smith Freed Eberhard Associate Brian Kernan‘s recent article, “Amplifying the Energy Code”,  discusses Seattle’s energy code as “the vanguard of new requirements on air barriers, which could fuel legal action against builders-even if they comply.” The article was published as the Northwest Region update in the Summer 2016 CLM Construction Claims magazine, which is distributed to more than 6,000 professionals in the construction claims industry. Read the full article to ensure that you understand the consequences of the 2015 Seattle Energy Code by clicking here to view the magazine or the full text is included below.


Amplifying the Energy Code

By Brian Kernan

Seattle, Washington, is leading the way in the growing trend of requiring air-barrier testing in new buildings. Washington state has also been a leader in this.  It and other states have required air barriers for years now, but Seattle is amplifying its energy code. The 2015 Seattle Energy Code, set to take effect in January 2017, will require testing, reporting, and compliance with the air barrier requirement and will include some of the most stringent testing requirements in the country.

The 2015 code could create an uptick in litigation for owners, builders and designers when buildings fail to satisfy the city’s air testing requirements. Additionally, owners disappointed with energy savings in their new building could seek to recover the delta from their construction and design teams. And airtight construction could have unintended consequences within buildings.

As other jurisdictions follow Seattle’s lead, as has been the trend with air barrier requirements, litigation involving air barrier compliance may expand.  The following jurisdictions currently have air barrier requirements in their commercial energy conservation codes: California, Connecticut, District of Columbia, Florida, Georgia, Illinois, Maryland, Massachusetts, Minnesota, Mississippi, New York, Oregon, and Rhode Island.  British Columbia has also incorporated air barrier requirements into its building code.

Seattle’s Code Has Evolved

Air barriers are one component of the building envelope—the physical separator (floors, roofs, walls, windows, and doors, etc.) between the conditioned and non-conditioned environment of a building.  The primary objective of an air barrier is to stop outside air from entering the building and prevent inside air from escaping through the building envelope to the outside.  The tighter the building, the less heated air leaks out in the winter, or cooled air in the summer.  The goal is to make the building more energy efficient and more comfortable for the occupants.

On the other hand, an airtight building may make it more difficult for bulk water (e.g. leaking) or condensation to escape.  This could feed problems within the building, such as decay and mold.

The Seattle Energy Code currently requires air tightness testing for all new buildings, including single-family homes (though the test for single-family homes is different).  Air tightness testing quantifies air leakage through the building envelope and qualitatively identifies airflow paths through the air barrier system.  Residences are required to pass an air tightness test prior to occupancy.  Commercial buildings can still get their certificates of occupancy if they fail the test, but builders must first seal leaks “to the extent practicable” and send in a report of what they corrected.  Tests must be done in accordance to ASTM E77917 or an approved equivalent standard.  Any building that does not meet the target must be re-inspected and any leakage found must be sealed.

The 2015 energy code is set to lower the allowable air leakage in a building from 0.4 cubic feet per minute per square bart to 0.3 cubic feet per minute per square bart.  While builders in Seattle have generally had little trouble satisfying the 0.4 cfm per square bart standard since the air barrier requirement was added to the energy code in 2009, satisfying the 0.3 cfm per square standard will be significantly more difficult.

The 2015 code will also expand the areas within the building subject to the air barrier requirement by adding to the definition of “conditioned space,” for purposes of the air barrier requirement, “elevator shafts, stair enclosures, enclosed corridors connecting conditioned spaces, and enclosed spaces through which conditioned air is transferred at a rate exceeding three air changes per hour.”

With all these enhancements, the 2015 energy code is still fairly vague regarding enforcement.  The 2015 code gives enforcement authority to the “Director of the Seattle Department of Planning and Development charged with the administration and enforcement of this code, or a duly authorized representative.”  The code official has the authority to accept or reject any remedial air sealing work.  But the air test itself is not an exact science.  Different organizations currently performing air tightness testing in Seattle do it differently.  And factors like the weather on any given can also have an impact on the test results.

Downstream Consequences of the 2015 Code

There could be unintended consequences of compliance.  For instance, since airflow through the walls can be reduced but not stopped entirely, there could be more time for condensation to occur within the building envelope.

There is also the issue of condensation generated throughout the building.  This will largely depend on occupant use.  For instance, a single person living in an apartment who typically eats out can be expected to generate significantly less condensation than a family of six that cooks and cleans constantly.  Construction professionals will need to ensure that air tightness is achieved in tandem with an effective mechanical ventilation system to ensure fresh air is getting into the building and moisture is allowed to escape.

Builders, contractors, and architects can expect to see owners bring negligence claims based on the design and installation of the building’s air barrier. Claims based solely on non-compliance absent resulting damage in jurisdictions like Seattle will raise problematic coverage issues for construction professionals.  The remedy may be to rip into drywall to repair air leakage.  Some jurisdictions have “rip and tear” coverage that may cover this type of remediation.  Others do not.

Liability as to an actionable construction defect and resulting damage caused by negligence is usually established through expert testimony on the industry standard of care.  Given that air barriers are a relatively new technology, determining the appropriate standard of care could be difficult-both at the builder level and in the design and contractor segments

Construction professionals might also see breach of contract claims for issues arising from the building’s air barrier.  Such claims could also include failure to meet specified energy efficiency standards.  Builders could also find themselves defending claims from owners disappointed with energy savings actually achieved.  There is the risk that, even absent contractual performance obligations, owners could use marketing materials to allege that the building fails to qualify as energy efficient.

Plug Your Own Gaps

It’s often not clear which trade has responsibility for air barrier compliance; therefore indemnity provisions in contracts should be modified, where applicable, to ensure that they address construction defects and code defects in the work itself.  Builders should use clear definitions and performance standards in contracts, contractual risk management regarding post-construction compliance issues, enhanced disclosures, and extra diligence in the builder’s design and construction contracting procedures. As air barrier requirements become more common in construction, installers with air barrier installation expertise will as well. But there will be a learning curve.

From a design quality perspective, third-party design professionals can review plans and specifications to assure code compliance, enhance constructability, and identify and delete defects. It will also be important that building professionals properly educate owners regarding proper maintenance of installed air barriers.

While challenges abound, builders who are familiar with local codes and air barrier specialists will have an easier time avoiding and beating claims and lawsuits.

Brian Kernan is an associate at Smith Freed Eberhard. Email Brian here.

Originally published in the 2016 CLM Construction Claims Magazine, Volume 1, Issue 1

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