Avoiding Litigation: To Be or Not To Be

By Keith Swift, PhD
InterNACHI member/InterNACHI Report Writing Consultant
President, Porter Valley Software

I recently completed an inspection of a two-story house with a raised foundation and single-glazed windows that was built in 1942. The heating and air conditioning was not original but it was beyond its design-life. The furnace and evaporator coil sat over a return-air plenum sheathed with plywood in an exterior closet that was linked by ducts to two small return-air grills on the ground floor. The condensing coil had settled out of level on a pad in an adjacent side yard. The system responded and, therefore, could be said to be working, which is what the real estate agents wanted to hear. However, there were problems. The return-air plenum was unsealed and extremely dirty, and had been subject to moisture contamination over the years, because tree roots had raised a patio slab on which the furnace closet stood and caused water to drain toward it. In addition, the return-air and supply ducts, most of which ran through the foundation crawlspace, were "air-cell" and insulated with a known asbestos-containing-material (ACM). These ducts were definitely original and intended for a heat-only system and, therefore, could be argued to be too small for cold air, which is sluggish and difficult to move. Remember, the house is two-story, has single-glazed windows, and unlikely to have insulated walls, and the blower fan and return-air grills are located on the ground floor. Add to these facts that the house is in southern California where the temperature regularly exceeds 100 degrees, and the air-conditioning system is suspect at best. To complicate issues, portions of the air-cell ducts had been removed and replaced with a fiberglass Micro-Aire type and a more modern flexible one. One might see this as an improvement but that would be a mistake, because an attorney could argue that opening the air-cell ducts to replace sections had increased the likelihood of the air supply having been contaminated with a known carcinogen.

As I contemplated how best to advise my client, I found myself faced with an interesting ethical dilemma. Am I a generalist, a specialist, or perhaps maybe a humanist, in the mundane sense of the word? I've written about how the distinction between generalists and specialists has blurred over the years, and expressed the opinion that pleading the "generalist defense" is a total waste of time. Regardless, we know that a generalist is obligated to simply defer to a specialist and that although unconstrained by industry standards a specialist might just correct the various deficiencies, and particularly if the specialist was working solely with the sellers financial interest in mind. And, therefore, the likelihood of a lawsuit in this particular case would certainly remain if I were to simply defer to a specialist and leave it at that. However, I was not about to leave myself vulnerable to a complaint, let alone a lawsuit, and advised my clients as follows:

The system is not original but beyond its design life, and needs to be serviced for reasons that I will explain. However, I would question the wisdom of spending money on a system that is old, not energy efficient, and which may never meet reasonable performance expectations. However, as to the need for service, a two-story house with single-glazed windows and walls that are probably not insulated would best be served by dual systems, one on the ground floor and one on the second floor. If this is not done, and the windows are not exchanged for dual-glazed ones, you are not likely to be satisfied with the performance of the air-conditioning on the second floor during the summer months. As the system exists, various components need to be serviced: the condensing coil in the south side yard has settled out of level, which will stress the bearing of the fan-motor; the flexible gas feed pipe should be rigid until it passes beyond the casing of the furnace; the return-air compartment and its ducts are old, dirty, and not adequately sealed, which allows for the potential of carbon-monoxide contamination; and portions of the ducts within the exterior furnace cabinet appear to have been damaged by vermin. Also, the ducts that pass through the foundation crawlspace have been unprofessionally modified. For the most part, they consist of an original "air-cell" type that are insulated with a known asbestos-containing-material (ACM), but which have been separated and added to with portions of a "Micro-Air" fiberglass duct and a more modern flexible one. Regardless, the original "air-cell" ducts were intended for heat-only and are too small for air-conditioning, but opening and replacing sections of them created the potential for asbestos contamination of the living space. In summary, although my responsibility is limited to recommending that an HVAC contractor and asbestos specialist evaluate the system, common sense compels me to recommend that you obtain estimates for replacing the entire system and adding an additional one for the second floor.