HOW TO AVOID LIABILITY ON A PROJECT
THAT DOES NOT INVOLVE A DESIGN PROFESSIONAL
INTRODUCTION
It is common for a roofing contractor to be engaged in a project that does not involve an
architect or other design professional. Often, the building owner will decide to not retain an
architect or consultant to design the roof system to minimize the cost of the project. Building
owners also may be influenced by the expertise and experience of the roofing contractor, who may
be recommending the roof system to be installed, and the availability of standard manufacturer
specifications for the roofing project.
The effect of a building owner’s decision to not engage a qualified and competent
professional is significant because it may expose the roofing contractor to greater liability for the
design of the roof than otherwise would be imposed on a traditional “build-to-design” project.
Consequently, when no design professional has been engaged on a project, it is important for the
roofing contractor to take action to avoid liability for design.
REVIEW AND, IF NECESSARY, REVISE THE CONTRACT
Even on a traditional “build-to-design” project, the roofing contractor may be
exposed to liability for design by language in the contract with the general contractor or owner that
should be revised prior to execution of the contract. Obviously, in cases where no design
professional is working on the project, the risk of potential design liability being imposed on the
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on the roofing contractor is heightened. Consequently, when working on such a project, the roofing
contractor should pay close attention to any design-related provisions in the contract and attempt to
negotiate revisions to insulate the roofing contractor from responsibility for design.
Language that may impose design liability includes the following: (1) provisions requiring
the roof to meet certain performance standards, such as a warranty stating the roof will achieve a
certain wind uplift resistance, remain “watertight” or be “fit for its intended purpose” (the roof will
be sufficient to meet the owner’s needs); (2) provisions requiring the roof work to be performed in
accordance with applicable laws, rules, regulations and/or building codes; and (3) provisions
requiring the roofing contractor to review the contract documents, which will undoubtedly include
any applicable plans and specifications, and notify the general contractor or owner of any
discrepancies between the contract documents and applicable laws, rules, regulations and codes.
When the roofing contractor encounters these types of provisions, or other language that
requires the roofing contractor to do more than perform work in a manner in accordance with the
contract documents, revisions should be made. Additionally, the roofing contractor should include
language in the proposal and resulting contract to be clear that the roofing contractor is not
responsible for design.
WORK COLLECTIVELY BUT QUALIFY ALL SUGGESTIONS OR ADVICE
When working on a project that does not involve a design professional, it is likely the owner
or general contractor will look to the roofing contractor for proposals or suggestions about what
specific roof system, product and/or component should be used to satisfy the owner’s needs. The
roofing contractor should not shy away from providing this type of advice when it is requested.
However, when providing such advice, it is important for the roofing contractor to make it clear that
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he or she is not a designer and the suggestions are not intended to replace or supplement the advice
of a qualified design professional. Ideally, the roofing contractor should respond in writing to
requests for suggestions or advice and include a disclaimer as mentioned above. The written
recommendation(s) also should make it clear the roofing contractor will not assume any
responsibility for the design and, as a result, suggest the general contractor or owner consult with a
qualified design professional prior to implementing any suggested product or system to ensure it is
sufficient to meet the owner’s needs.
OBTAIN WRITTEN ASSURANCES FROM THE MANUFACTURER
Another way of limiting the roofing contractor’s potential liability for the design of a
roofing project requires the roofing contractor to obtain assurances from the manufacturer that a
particular roof system will meet the owner’s needs. Such assurances should be requested in writing
prior to commencing work and may require discussions between the owner and/or general
contractor and the manufacturer’s technical representatives. When the roofing contractor is
following standard specifications issued by a manufacturer, he or she may request the
manufacturer’s technical representative review the contract documents for the project and
acknowledge the standard specifications are adequate. Any suggested changes provided by the
manufacturer should be forwarded to the general contractor or owner for review and approval.
For further protection, the roofing contractor may seek to insert a clause in the authorized
applicator agreement with the manufacturer requiring the manufacturer to defend and indemnify the
roofing contractor from claims that arise from the roofing contractor’s use of standard specifications
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issued by the manufacturer. Below is an example of this type of clause:
Manufacturer shall protect, defend, indemnify and hold Applicator harmless from
and against all claims, damages, losses and expenses, including attorney’s fees,
which arise out of, or directly or indirectly result from defective Manufacturer’s
specifications.
CONCLUSION
Proceeding on a project that does not involve a qualified designer is not without its perils,
especially when the roofing contractor is recommending the specific roof system, products and/or
components to be used. That being said, the roofing contractor should be proactive and take steps
prior to and during work on the project to be insulated from liability for design.
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