Trent Cotney, FRSA General Counsel, Cotney Construction Law
If you have been in the roofing industry very long, you are probably aware of the potential risks involved in working with torch-applied roofing materials over combustible roof decks and substrates. Even the most skilled CERTA-trained contractors are at risk of unexpected rooftop fires resulting in extensive property damage and personal injury. That being said, contractors often find themselves in a bind when designers and owners require these methods of application, despite the contractor’s recommendation for safer, alternative methods. Because of this, it is important to limit your potential liability arising from torch-applied application as much as possible. A suggested starting place is including a disclaimer of liability in your standard contract. When doing so, it is important to keep the following in mind:
Design professionals are usually responsible for requiring use of a torch-applied system. This can cause problems when the roofing contractor is only in contract with the owner. Because this prevents you from shifting liability to the designer directly, be sure to direct the shift in liability to the proper party – in most cases the owner – and include language requiring the owner to acknowledge the risks involved in the application the designer is specifying.
Generally speaking, indemnification provisions are contractual mechanisms that shift liability for a contractor’s negligence from the contractor performing the work, to another party elsewhere in the chain-of-command. However, 45 states, including Florida, have enacted some form of anti-indemnity restrictions that either completely or partially limit one’s ability to shift the risk of negligent construction onto another party. It is important to keep these statutory requirements in mind when shifting the risk of damages arising during a torch-applied installation.
Making sure contractual disclaimers are “set-out” and “conspicuous” may increase the chance they are enforceable. This helps to ensure that parties are not agreeing to waive important rights in the fine print of long contractual documents. Italicizing, bolding, or using all capital letters may assist in making the disclaimer conspicuous.
Taking these issues into account, here is a sample disclaimer of liability for installation of torch-applied systems over combustible roof decks:
RELATED TO TORCH-APPLIED SYSTEMS OVER COMBUSTIBLE DECKS
Due to the potential fire-related risks associated with the utilization of torch-applied polymer modified bitumen membranes over combustible roof decks and substrates, including without limitation, those with a thermal barrier insulation layer (“Torch Application”), Contractor recommends utilizing alternative methods and/or materials in lieu of Torch Application. Owner acknowledges the risks involved and despite Contractor’s recommendation, Owner requires Contractor to utilize Torch Application on this Project. Accordingly, as consideration for Contractor agreeing to utilize Torch Application in lieu of a safer recommended option, Contractor disclaims any and all claims, disputes, rights, losses, damages, causes of action, or controversies caused by, arising out of, or otherwise pertaining to Torch Application, including but not limited to claims based on Contractor’s sole negligence to the extent permitted by law (“Torch Application Claims”) and Owner expressly agrees and acknowledges waiver of any and all Torch Application Claims against Contractor related to same. Owner further agrees that, in any event, Contractor’s maximum liability for any and all Torch Application Claims shall be limited to the total dollar amount actually paid to Contractor by Owner under the Contract for the Project.
You will notice that this clause attempts to navigate the common pitfalls discussed above that often arise when drafting these disclaimer provisions. That being said, simply including a disclaimer in your standard contract will not, by itself, protect you from any and all claims arising from your work and will not shield you from liability for failure to adhere to product specifications and applicable safety guidelines. A safe roofing contractor is a successful roofing contractor.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney is an advocate for the roofing industry, General Counsel of FRSA and a Florida Bar Board Certified Construction Lawyer. For more information, contact the author at 866-303-5868 or go to www.cotneycl.com.
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