Trent Cotney, FRSA General Counsel
I always say that contracts are like a will - no one wants to look at them until it's too late. Case law and statutes are constantly changing so it is important for roofing contractors to stay abreast of the latest provisions. This article will focus on one provision in particular - drainage.
Frequently, roofing contractors receive service calls or complaints as a result of ponding water or leaks caused by poor drainage. Drain pipes may be improperly- sized and may require a licensed plumber to adjust or replace them. Prior to performing the work, it may be difficult for a roofing contractor to determine if the roof will adequately drain after repair or replacement. Roofers also face a variety of issues with ponding water as a result of a bad deck or other structural issues.
Given the number of recent claims we have seen arising out of existing roof drainage, we recommend adding a specific provision that addresses the issue:
The scope of work for this project excludes the evaluation of existing roof drainage, including the size, location
and sufficiency of the primary roof drains and/or scuppers/secondary roof drains. Customer accepts responsibility for the roof drainage design and sufficiency of the roof drainage system on the project and should consider consulting a licensed professional engineer experienced in roofing design and systems and/or plumbing contractor prior to Roofing Contractor starting work to determine if the existing roof drainage system and/or current roof drainage system will be sufficient in meeting the requirements of the Florida Building Code. Roofing Contractor shall not be liable for roof drainage-related issues, claims or damages including ponding water caused by the substrate, deck, drainage or other structural conditions. The Customer is responsible for ensuring its engineer/plumber is properly licensed and experienced in performing roofing-related design or construction work. To the extent a permitting authority, building official, or any other authority having
jurisdiction requires Roofing Contractor to eliminate ponding water or increase drainage, Customer acknowledges that all work associated with same is an extra charge and Customer agrees to promptly pay Roofing Contractor for the work performed, this includes any testing, reports, drawings, details, consulting, etc.
This provision can be shortened but contains the language needed to address inadequate drainage on roofing projects. Obviously, under the Florida Building Code, a roofing contractor generally has a duty to ensure positive drainage; however, it should not have to absorb the cost in doing so if there were structural or deck conditions that were not readily apparent at the onset of work or if the existing drains were insufficient. In future articles, I will focus on some other hot button issues in the industry and provide provisions for FRSA members to use in their contract documents.
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 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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