Trent Cotney, FRSA General Counsel
Occasionally, roofing contractors are faced with claims made by tenants or owners based on the inhalation of toxic fumes from the application of roofing materials. The first thing any contractor should do is check their general liability policy to determine if it has coverage for these types of claims. Often, general liability policies exclude coverage for pollution under the Total Pollution Exclusion Endorsement (CG 21 49, CG 21 55 and CG 21 65). Fumes are normally included in this pollution exclusion, leaving roofing contractors to defend and settle claims related to fume inhalation without coverage, thereby requiring the contractor to not only pay out-of-pocket for his counsel, but for payment/ settlement of the claim if and when it occurs. But it is not just fumes, dust and diesel may be considered pollutants under an insurance policy. See Devcon Int’l Corp. v. Reliance Ins. Co., 609 F.3d 214 (3d Cir. 2010). During the renewal period for general liability, which is usually May of each year, I encourage every roofing contractor to examine their policy and
verify coverage for pollution-type claims.
Contractually, a roofing contractor may be able to address some of the issues with inhaling fumes. These types of provisions would only provide protection to the roofer from claims made directly by its customer and not claims by a third party such as a tenant.
Roofing Contractor disclaims all claims, liability and damages for the inhalation of fumes, pollutants or odors
arising out of or relating to the performance of roofing work on the project. Customer shall be responsible for indoor air quality during the work and shall hold Roofing Contractor harmless, indemnify and defend Roofing Contractor from any and all claims, damages, actions, proceedings, and complaints, including attorney’s fees and costs, arising out of or relating to fumes, odors, and/or the indoor air quality. The Customer’s duty under this provision is limited to a total of ONE MILLION AND NO/100 ($1,000,000) DOLLARS for all damages, including costs and attorney’s fees per occurrence for any single claim or suit. The parties also agree that this provision satisfies the requirements of Florida Statute §725.06 so that the indemnification provisions are valid and binding upon Customer.
While no contract provision is fool-proof, provisions such as these may assist a roofing contractor in defending against personal injury type claims arising from fume inhalation.
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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