In a recent major water and mold damage subrogation case in New York, the focus was on negligent maintenance and the failure to detect a major defect in a commercial HVAC system, which ultimately led to major water and mold damage and a large subrogation claim. The interesting aspect of this case, aside from the recovery we obtained, was not the science or HVAC technology involved. It was the English language. Words matter, and at times, can be the subrogation professional’s best friend – or worst enemy.
A defective commercial HVAC system leaked for almost a two-year period, which saturated cellulose fibers found in the building’s insulation, ceiling tiles, and wall coverings and, serving as a food source, produced mold which created toxic chemicals known as mycotoxins. Spores can germinate after only 12 hours in some conditions and some grow in 24 to 48 hours. Houses offer an ample food supply – drywall, wood, insulation, and paper. When these materials become damp or wet, settled spores can become growing molds. Molds may colonize in 1 to 12 days depending on the type of mold. It was a large claim.
Our insured’s preventative maintenance service agreement with the HVAC company required “bi-annual” inspections and preventative maintenance on the insured’s chillers, condensing units, and air handling units. Discovery revealed, however, that the defendant was performing inspections roughly every other year and this resulted in a wholesale failure to detect and prevent major damage to the insured’s building.
The defense was a creative one. The HVAC contractor’s lawyers argued that a requirement for “bi-annual” inspections – as called for in the contract – required only one inspection every other year. A linguist expert was hired by the defendants and testified that according to Merriam-Webster, “bi-monthly” means both (1) occurring every two months, and (2) occurring twice a month. The infamous dictionary also suggests “semi-monthly” as a substitute for occurring twice a month, but the expert was technically correct. He then extrapolated that if “bi-monthly” could mean every other month; “bi-annual” could and should mean “every other year.” The argument had its appeal, but it got even worse.
The expert then pointed out that Merriam-Webster actually defines “bi-annual” as (1) happening twice a year, and (2) happening every two years. But, how can one word mean two very different things? One could simply blame the English language and point out some of its extraordinary non-sequiturs. For example:
We’ll begin with a box, and the plural is boxes; but the plural of ox became oxen not oxes. One fowl is a goose, but two are called geese, yet the plural of moose should never be meese. You may find a lone mouse or a nest full of mice; yet the plural of house is houses, not hice. If the plural of man is always called men, why shouldn’t the plural of pan be called pen? If I spoke of my foot and show you my feet, and I give you a boot, would a pair be called beet? If one is a tooth and a whole set are teeth, why shouldn’t the plural of booth be called beeth? Then one may be that, and three would be those, yet hat in the plural would never be hose, and the plural of cat is cats, not cose. We speak of a brother and also of brethren, but though we say mother, we never say methren. Then the masculine pronouns are he, his and him, but imagine the feminine, she, shis and shim.
It is true that a bandage is wound around a wound, a farm is used to produce produce, and a landfill can become so full that it has to refuse refuse. But, we had a seven-figure subrogation loss to recover, so scratching our heads and giving up was not an option. We hired a linguistics expert of our own.
Our expert pointed out that the Oxford American Dictionary defines “bi-annual” as “happening twice a year,” and does not mean “every two years.” Careful drafters of contracts and other writings would be prudent to use “semi-monthly” to mean “twice a month” because “semi” is a prefix that means “half.” Theodore Bernstein in The Careful Writer writes, “Bi-monthly means every two months, and nothing else.” But, bi-weekly can mean “every two weeks,” or “twice a week.” Bernstein concludes, “Without question, man’s communication with his fellow man would be improved” if “semi” was used to mean half and “bi-” was reserved to mean “two.”
The defendant’s expert could not explain how “bi-” can mean “two” and “semi-” can mean “half,” yet argued that bi-annual and semi-annual have somehow become synonymous. God forbid that a tenant would argue that the term “bi-monthly payments” means one payment every two months as opposed to every two weeks. There is clearly a lot at stake with the simple use of words.
Although prudent drafting should never let the reader determine what these words mean, and the best course of action is to avoid using “bi-” in contracts and other legal documents, we should at least be consistent. “Semi-” always means “half” and “bi-” always means “two.”
We settled the subrogation case, but not because we solved the riddle of the English language, but because we introduced additional expert testimony that it is standard in the industry that a HVAC unit should have maintenance done at least once a year – simply put, “annually” – and should be inspected twice a year. For a system that heats and cools, inspections are recommended to be performed twice a year – once in the spring and once in the fall. Bi-annual preventative maintenance ensures that the HVAC system runs as efficiently as possible and allows failures to be detected long before they become a major problem.
The lesson for subrogation professionals is that words are free. It’s how you use them that may cost you. As famously put by George Herbert, “Good words are worth much and cost little.”
If you should have any questions regarding this article or subrogation in general, please contact Gary Wickert at gwickert@mwl-law.com.
