Trent Cotney, P.A.
As many of you may have experienced, owners have become more legally-sophisticated and are using a variety of excuses to avoid payment. One of the most common excuses involves the claim that either the roofer or the roofing supplier caused driveway cracks as a result of their equipment or materials. The likelihood that driveway cracks occur because of trucks, equipment or materials is slim. The reality is that almost every driveway in Florida within a matter of a few years experiences some cracking as a result of settlement, age, roots or other displacement. The purpose of this article is to provide the reader with some self-help tips to avoid these types of claims in the future.
Ninety percent of the time a roofing contractor is called to a project, there is an existing leak or the roof is in severe need of replacement. Therefore, it is important to document existing conditions, including any interior damage. This can be as simple as walking through with your cell phone taking video-feed or taking select photos of damaged ceiling tile, drywall, mold or mildew around windows, etc. Although this pre-construction investigation would be ideal, we understand that many times a roofer is not provided access to the interior of the home and cannot inspect the home prior to construction.
However, it can take photos and video of the exterior conditions, including any existing damage to the driveway. It is important that these photos are taken prior to any truck being placed on the driveway, so that if a claim arises, it can be compared to the pre-construction condition. The majority of the time, homeowners are complaining of cracks that existed prior to construction. This is not to say that supplier flatbeds, trucks or debris containers can’t cause this type of damage. It is merely suggesting that a lot of the cracks complained about by homeowners may have been in existence long before you approached the job.
As with any job, it is also important to manage your customer’s expectations. You should inform them that both you and your supplier will be utilizing the driveway, that you need to use the driveway in order to roof top materials and that there is always a risk of driveway cracks as a result. You can even offer to avoid using the driveway in exchange for charging more for labor in order to remove the supplies and then manually roof top them.
This information should also be coupled with a disclaimer in your contract. Many residential contracts are double-sided, one page or two pages at most, and it is difficult to place a lengthy disclaimer in the terms given the amount of real estate available in the contract. However, a provision can be inserted in the contract which states:
“Due to the nature of the construction to be done at customer’s request, the customer takes sole responsibility and contractor disclaims any liability for damage caused to curbs, walkways, driveways, structures, septic tanks, HVAC, utility lines, pipes, landscaping, and/or appurtenances.”
Obviously, there is no contract provision that will make you lawsuit-proof, but provisions such as these will assist you in defending claims made by homeowners related to driveway cracks.
Author’s note: 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 Florida Bar Certified in Construction Law, General Counsel and a director of the Florida Roofing and Sheet Metal Contractors Association (FRSA), a director of the West Coast Roofing Contractors Association (WCRCA), and a member of the National Roofing Contractors Association (NRCA), Midwest Roofing Contractors Association (MRCA) and several other FRSA affiliates. For more information, contact the author at 813-579-3278 or go to www.trentcotney.com.
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