EIFSFACTS.ORG

The Real Facts About EIFS 

- Fraud and False Advertising -

To any home-owner who has bought into the promises of EIFS, the issue of Fraud and False Advertising are a no-brainer. They were sold a product that, even in the manufacturer's own admissions, does not work as advertised. I have received quite a number of inquiries from affected home-owners as to whether they will be able to support a claim of Fraud and / or False Advertising against an EIFS manufacturer.

First, the standard disclaimer. I am not an attorney. Almost everything I know about the legalities of this issue come from the issues of my personal case against Dryvit, as pursued by my very competent counselor, Robert Richardson. The opinions expressed on this page are mine, not his. If you would like his, I will be glad to refer you. Also, after being in the court room to hear some of the legal arguments in my case, I have never been more sure in my life that my decision not to go to law school was a good one. Also, one must keep in mind that the particulars of the law change from state to state. General rules of law, as far as I can tell, are farily uniform. However, even something as seemingly clear-cut as Fraud can become quite complex under the law. You quickly get into issues of Constructive Fraud, Fraud by Ommision, Fraud by Negligent Misrepresentation, etc. As usual, you must consult a comptetent attorney who is a member of the BAR in your state for legal advice.

Secondly, this information is intended for home-owners, not attornies. Attornies already know this stuff (we hope) and home-owners are already confused enough trying to figure out the difference between "Statute of Limitations" and "Statute of Repose". However, if you, as a legal professional, have an issue with something on this page, please let me know.

With that said, here is some of what I have learned:

First, in order to show Fraud ("Constructive Fraud" in most states), the plaintiff (you) will have the burden of showing Specific Reliance. That means that you must be able to show that, in purchasing a product that has caused harm to you, you must have relied on specific information the defendent knew to be false (in the case of Fraud by Ommission, you have to show that the defendent failed to supply relevant information). Courts don't want to hear general arguments. You can't argue that because an EIFS manufacturer said in their ads that there products were "A premium cladding system" and because the product really sucks in reality you have a claim of Fraud. These general claims of a product being the best innovation since sliced bread are commonly referred to as "puffery" and, as far as I've seen, are not a basis for a claim. Courts want to see specific information. In my case, we can show, among other things, that I relied on Dryvit's document DS201: A Comparison: conventional interior insulation vs. the advantages of the Dryvit Outsulation System, published in 1981. It states:

"Damaging water penetration is avoided. Rain finds its way into the wall structure when insulation is placed inside. Conventional insulation absorbs water over a period of time and eventually becomes inefficient. With Outsulation, there are no routes for water to enter. Bridges are sealed. The entire wall remains dry and insulation values remain constant."

Now, in January 1993, a year before I purchased an Outsulation EIFS, Dryvit filed their US Patent Application #5,363,621 for its Insulative wall cladding having insulation boards fitting together to form channels. It states, among other things:

"In consequence of this relatively large pressure differential between the outside and inside of the building created by strong winds acting on the wall, significant water ingress through hair-line cracks and other unintentional openings and the like readily occurs. In the absence of a cavity in the wall [as in barrier EIFS], such moisture will reach and damage the inside surface of the wall of the building."

Thus, Dryvit admits in the newer document that the specific statements (statements I relied on) it makes as to the benefits of its Outsulation EIFS in the previous document are false. They made no efforts to warn, or to retract the document, however, as their Distributors were still making it available to perspective customers as late as 1999. These are the kinds of specifics the courts demand.

One thing that was really a surprise to me, is that, at least in my state, you needn't even have purchased the product to be a victim of Fraud. It could have been given to you. So long as you suffered some harm as the result of the use of the product, you may have a claim.

The plea of False Advertising appears to be much along the same lines, requiring specific reliance upon published information. It appears, that in at least some states, the statute of limitations for False Advertising is much shorter than that for Fraud.

I will try to add to this page as my schedule and nausea permit.