Avoiding Litigation: HVAC

The first thing that I do with heating and air-conditioning systems is determine the age of the major components. The older they are, the more suspect they become. This is particularly true of combustion chambers, which are commonly disclaimed in industry standards. But this can make inspectors lazy, and even give them a false sense of security. You’d be surprised at how many inspectors have been sued over cracked fireboxes and how meaningless their disclaimers became, simply because they weren’t sued for breach of contract but for negligence. In fact, for many years, I rarely gave combustion chambers anything more than a cursory examination. Then, I began to do more conscientious evaluations that included removing the flame covers. The first time that I did this, I was treated to a view of the combustion chamber that I had never seen before, and to my delight I saw a distinct crack at the fluted top of one of the chambers. Suddenly, I was a hero! My clients were virtually guaranteed a new furnace, and the wicked witch of the west who was representing the sellers wasn’t able to argue with me. From that point on, the inner recesses of combustion chambers that were once a mystery were now familiar, and I was occasionally able to confirm cracks. Even when they weren’t cracked, I was able to select a narrative from my report-writer that more accurately described the visible portions as being in reasonable condition, thermally fatigued, rust-contaminated, or simply beyond design-life and worthy of a second opinion. And they were rarely perfect, which allowed me to sensibly recommend a specialist evaluation. This was important, because of a clause in my contract that my clients are required to initial by which they agree to hold me harmless from any subsequent action resulting from an alleged deficiency with any component or condition that I had recommended for service or evaluation by a specialist. And, why not? I’m a generalist, not a specialist!

Encouraged by my newfound expertise, I examined other components with equal care. Vent pipes, for instance, had to be perfectly sealed and adequately pitched with appropriate clearances from combustibles to receive my blessing. Return-air compartments had to contain the piercing beam of my flashlight and be spotlessly clean, or risk being identified as a potential haven for dust mites and other contaminants that can compromise air quality. I want to be the one to warn my clients about environmental contaminants, and not the one who hears about it later from their attorneys when they’ve been diagnosed with so-called respiratory problems. Attorneys don’t contact you to report that their clients have had sneezing fits that are likely caused by animal dander and dirty filters. Instead, they tell of whole families doomed by daily nosebleeds and splitting headaches, who are gasping for breath at death’s door; that is until they receive a sudden infusion of cash from an insurance company, at which time they make a miraculous recovery, list the house for sale, and move on to greener pastures! And it’s not unusual for attorneys to find a host of expert witnesses willing to confirm such horror stories for a mere thirty pieces of silver!

So how can inspectors defend against such spurious claims? Well, if you believe that all attorneys are fair and reasonable, and that they believe passionately in justice, then don’t do anything at all. Simply, trust in the judicial system. However, if you believe that there are many attorneys who are ill educated and amoral and commonly make false accusations and resort to ridiculous exaggerations, then your reports should include information that reminds your clients that health is a deeply personal responsibility, and that they should have the air quality tested and distribution ducts cleaned as a prudent investment in environmental hygiene, and particularly if any family member suffers from allergies or asthma. After all, that’s a perfectly reasonable recommendation, and one that deserves to be included in the majority of reports. The written word is a mighty ally! But let’s talk about ducts. 

The least litigious ducts are brand new, black and flexible, or silver and flexible.  All other ducts are suspect. Light-gray flexible ones are subject to u-v deterioration, which can make them appear as if the outer neoprene sleeve has been slashed with a razor knife, compressed fiberglass ones can evoke allergic responses in sensitive people, and rigid silvery or milky white corrugated ones are insulated with an asbestos-containing material that should never be endorsed under any circumstances, regardless of their condition. Asbestos is a highly emotional and litigious issue! Even the innocent-looking milky white paper seals on the seams of plenums and heat vents or around the boots of many old ducts, should be identified as a known ACM, and recommended for evaluation by a specialist. In addition, the ducts should be adequately supported, and their seams should be sealed with a silver thermal duct tape, and not the old silver-gray type that dries out and drops off. And you may even want to take a photograph of the ducts to confirm their condition at the time of the inspection.

The most fearsome aspect of fossil-fueled heating systems is their ability to produce carbon monoxide, a gas that cannot be seen, smelled, or tasted, and which has come to be known as the silent killer. If you’re not prepared to use a carbon monoxide tester, the use of which may remove you from the category of a generalist, you should be prepared to confirm that any appliance capable of producing such a deadly gas is perfectly clean, well sealed, directly vented, richly infused with combustion air, and that the flames on the burners are a cobalt blue and stand straight up. If they are yellow, or heavily oxygenated, and the tips bend over and dance when the blower fan turns on, there is the likelihood of a cracked firebox, inadequate combustion air, or simply a maladjusted gas/oxygen ratio, any of which can contribute to the production of carbon monoxide. However, regardless of regional codes, I will never endorse any combustion appliance that is located in a bedroom, even if it is directly vented, and I am deeply suspicious of any appliance that is older than ten years, although combustion appliances in newer homes should also be a cause for concern, because newer homes are better insulated and more tightly sealed, and something as seemingly innocent as a bathroom exhaust fan can induce negative pressure and back-drafting.

Air-conditioning systems are more complicated, but not life-threatening, and I’ll be the first to admit that for many years I didn’t have a clue how they worked, not that I’m an expert now. However, with the help of specialized instruments, I can better evaluate their performance. The first thing that I take into consideration is the size and age of the residence, and its orientation to the sun. This will tell me a lot about the thermal value of its walls and windows. Obviously, a two-story house with single-glazed windows and a southern exposure will be hard to cool, and particular if the blower fan on the furnace is on the ground floor. We all know that hot air rises and cool air falls, but cold air is also sluggish and much more difficult to propel. I’ll never forget the first time that I was threatened with as lawsuit. It was over air-conditioning. My client was an educated man, and one who I thought would be fair and honest, but he wasn’t.

The house that I inspected for him was an old two-story Spanish house with a balcony that had been enclosed with slatted windows, which he intended to use as an office. Interestingly, it was in the middle of winter when I did the inspection, and when he told me about its intended use, and I warned him that it was likely to be uncomfortably hot on long summer days. This not only proved to be true, but also the reason why he was threatening to sue me! But I hadn’t endorsed the systems! My report indicated the age of the components, confirmed that they were relatively new, and advised him to seek the installation permit and any warranty that might be transferable. Furthermore, I had pointed out to him that a stray cat had taken up residence inside a separated duct in the foundation crawlspace, and recommended service by a specialist. When I reminded him of these details, he had a sudden lapse of memory, but continued to repeat that a heating and air-conditioning contractor insisted that the entire system needed to be replaced, for a cost of fifteen thousand dollars. I was astonished, but I was using a single-page contract and some rather primitive check sheets at the time that were of little defense. And I had a deductible of twenty-five hundred dollars, which I eventually paid to avoid litigation. So what’s the moral of this story?

I can’t speak for other inspectors, and I wouldn’t want to if I could, but I’m convinced that many inspectors will eventually end up doing highly sophisticated inspections, using specialized instruments, and imparting information in exquisitely detailed computerized reports, replete with photographs, for which they will receive fees that are at least equal to those of structural engineers and geologists. And perhaps that’s as it should be! Until then, you are likely to hear more and more horror stories from the trenches, and more and more vicious jokes about attorneys.