Trent Cotney, Cotney Construction Law
As some may be aware, the Insurance Institute for Business & Home Safety (IBHS) has recently unveiled a new certification available to roofers under the moniker “FORTIFIED” (see www.fortifiedhome.org). FORTIFIED is described as a “nationally recognized building method that goes beyond building codes to strengthen residential and commercial buildings against specific hazards such as high winds and hurricanes.” While this new certification may sound desirable, roofers in the State of Florida are no strangers to licensing and additional certifications.
Indeed, as readers are aware, Florida roofing contractors are required to be licensed by the Department of Business and Professional Regulation (DBPR). There are also nationwide certifications available to roofing contractors, such as the National Roofing Contractor’s Association’s (NRCA) ProCertification, which offers certifications for foremen and for specific roofing systems. ProCertification encompasses a wide variety of roofing systems, including TPO, EPDM and asphalt shingle roof systems. In addition to the NRCA’s certification programs, there are also a variety of certified applicator programs provided by manufacturers.
Manufacturer certifications train and certify roofers on high quality installation methods utilizing the latest technologies available. Routinely, roofing companies seeking manufacturer certification must show proof of state licensure, insurance and must also
establish their reputation by showing good standing with organizations such as the Better Business Bureau. Companies who achieve the manufacturer certification gain not only the prestige and reputation associated with obtaining such a certification, but also the ability to offer their customers enhanced warranties which are backed by the manufacturer.
In light of the above licensing and certifications, either required or available to a roofing contractor, the question becomes whether or not a FORTIFIED certification is needed and, further, from a legal perspective, whether or not obtaining such a certification
could result in unnecessary liability for a contractor. It should be noted that there are two available FORTIFIED courses based upon a roofing contractor’s geographic location. For those that are working in inland communities, currently the FORTIFIED Wise Roofing Contractor – High Wind and Hail course is being offered. For those in coastal communities prone to hurricanes, there is the FORTIFIED Wise Roofing Contractor – Hurricane course. The course involves virtual instruction followed by a 40 question 1-hour multiple choice exam. Upon passing the exam, a contractor will become a FORTIFIED Roofing Contractor and will be provided the option to be listed in the IBHS FORTIFIED directory.
The scope of instruction involves various roofing techniques designed to mitigate potential damage caused by inherent threats in coastal (hurricane) or inland (high wind and hail) areas. These techniques focus on
1. improved roof sheathing;
2. enhanced edge details;
3. sealed roof decks;
4. wind-rated roof cover; and
5. water-resistant attic vents (both ridge and off-ridge).
While the Florida Building Code and HVHZ regulations address a majority (if not all) of these requirements, a roofing contractor should be concerned about the potential liability in the event that there is an issue with a roof constructed under these standards. In particular, if a FORTIFIED roof system fails, there is concern that a roofer could be held to a heightened standard of care as a FORTIFIED Roof Certified Roofer. Rather than being held liable under the standard of care of your typical roofer, there is a legal argument that the roofer can be held liable for failing to meet the standard of care expected of a FORTIFIED Roofer. It should be noted that this issue has not been explicitly recognized in a court of law, but there is the potential that in the event of litigation, the party claiming damages may attempt to hold a roofing contractor to this heightened standard of care.
A secondary concern surrounding the certification is that, in the event that such a roof system were to fail, the roofer may face liability for negligent or fraudulent misrepresentation based upon the representations regarding the stringent requirement for the certification program and the roofing systems that are intended to result from the FORTIFIED certification. If the roof were to fail, a customer could potentially argue that they were convinced to enter into a contract based upon the representation that a FORTIFIED roof can withstand certain conditions and seek damages as a result.
Lastly, in order to participate in the IBHS program, the roofer in question must provide a variety of disclosures and information to the certification program including information related to the construction of FORTIFIED roof systems. In the event that a roof system was to fail and litigation were to ensue, this information would be discoverable and a roofer could be negatively impacted by the disclosures. Even further, given that insurance is advocating for this change, the questions arise as to whether IBHS will share the disclosed information with carriers that could be used by insurers against their roofing insureds.
High wind-resistant construction is important in Florida; a prudent contractor would be wise to consider the potential legal implications of obtaining the FORTIFIED certification weighed against the potential appeal to customers. The foregoing concerns are merely factors to consider when making this determination.
Authors Note: The information contained in this article is for general educational information only. This information does not constitute legal advice nor should it be relied upon as legal advice for your specific factual pattern or situation.
Trent Cotney, CEO of Cotney Construction Law is an advocate for the roofing industry, Board Certified in Construction Law in Florida and General Counsel of FRSA. For more information, contact the author at 866-303-5868 or go to www.cotneycl.com.
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