Roofing and Design Professional Warranties

Roofing and Design
Professional Warranties
Brian T. Must
and
Joshua D. Baker
Metz Lewis Brodman Must O’Keefe LLC
535 Smithfield Street, Ste. 800, Pittsburgh, PA 15222
Phone: 412-918-1100 • E-mail: bmust@metzlewis.com & jbaker@metzlewis.com
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Abstract
The financial and professional consequences of using unclear warranty language can be
huge. Nonspecific warranties and contract provisions have the potential to expose the warrantor
to far more liability than intended and may also give other parties greater recourse
than expected. Pulling from 20 years’ experience representing roofing manufacturers, building
owners, design/build firms, engineers, and contractors, the speakers will demonstrate
that warranty language is often an overlooked issue. Discussion will focus on how courts
analyze ambiguous warranties to create unexpected liabilities and greater financial ramifications.
The speakers will offer suggested language to use to hopefully avoid unintended
consequences.
Speaker
Brian T. Must — Metz Lewis Brodman Must O’Keefe LLC
Brian Must has spent the past 20 years representing manufacturers,
building owners, design/build firms, engineers, and contractors
in the commercial roofing industry. He has represented various roofing
entities in claims or litigation involving hospitals and healthcare
facilities, schools and universities, government buildings, and high-rise
condominiums. His experience ranges from negotiating and resolving
commercial roofing claims and lawsuits to trying cases before federal
and state courts and commercial arbitrations.
Joshua D. Baker — Metz Lewis Brodman Must O’Keefe LLC
Joshua Baker has represented roofing manufacturers and contractors
in alleged roofing failure and contractor error disputes. He also
has experience with overall claims management, including policy and
procedure development and with writing effective warranties.
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It’s a typical Tuesday afternoon when
your office phone rings. One of your largest
clients is on the other end with a request
that is music to your ears. The board has
commissioned the construction of a new
office building and has selected your firm
to be the lead professional. All aspects of
the building envelope, exterior, and roof are
your responsibility. Plans and specifications
are approved, contractors and suppliers are
vetted, agreements are executed, and the
construction of the building is successfully
completed.
The building owner, thanks to your
expertise and recommendation, installs a
new roofing system and secures a 20-year,
no-dollar-limit warranty from the roofing
manufacturer. The installation of the system
goes smoothly, and your firm approves
the roof following a final inspection. The roof
performs without incident for many years
with only minor repairs that are covered
under the warranty without issue.
Fast-forward 15 years, and the same client
calls to report a major water leak that
has infiltrated the building and caused substantial
damage. The roofing manufacturer
inspects the roof and determines that the
leak is covered under the warranty. However,
the cost to repair the roof is significant and
potentially exceeds the remaining value of
the roof. The roofing manufacturer, relying
on its warranty language, which disclaims
consequential damages, also refuses to repair
any damage to the building’s interior caused
by the leak. The manufacturer offers to pay
the remaining value of the roof and offers no
compensation for the interior damage.
The building owner, faced with receiving
only a fraction of the costs to repair the
roof, is persistent and decides to bring a
lawsuit against the roofing manufacturer
seeking to recover all of damages, including
the full cost to repair the roof and the costs
associated with repairing the damage to the
building’s interior. While the roof warranty
may have seemed like a minor detail during
the multimillion-dollar construction of
the new building, it suddenly turns into the
heart of a lawsuit with large sums of money
on the line.
The outcome of the lawsuit is largely
dependent on two key factors: first, the
written terms and legalese contained within
the warranty itself; second, whether the
terms and conditions of the warranty have
been complied with and satisfied. Whether
it is the designer who specifies the roof,
the manufacturer who supplies the roof,
the contractor who installs the roof, or the
building owner who ultimately is obligated
and controlled by the warranty, the warranty
touches the hands of many people
during the process.
This paper will discuss how courts in
the United States have treated ambiguous
and unclear warranty language in contract
documents. It will also address the potential
issues that can be created when vague
warranties are used. Whether the job is new
construction, the replacement of an existing
roof, or a professional providing expert and
litigation support services, the roof warranty
is a critical factor and an area where
building owners rely upon the guidance of
professionals in order to avoid unintended
consequences.
WHAT IS A WARRANTY?
The concept of a warranty was first developed
in the early 19th century as a means for
reputable sellers to stand behind the goods
that they sold. Buyers and sellers of commercial
goods used “implied” warranties as
a way for sellers to back their products and
act as an insurer of their own goods. The law
covering the subject of warranties developed
from these early principles governing the
relationships between buyers and sellers of
commercial goods and services.
Over time, implied warranties began to
be transcribed and expressed in written
contracts between two parties. The Uniform
Commercial Code, first published in 1952
with the goal of harmonizing the law of
sales and other commercial transactions,
defines an express warranty as an affirmation
of fact or a promise made by a seller to
a buyer that relates to the goods and creates
an express undertaking that the goods will
conform to the affirmation or promise.
Modern-day building and construction
projects are rife with multiple contract
documents and express warranties, which
may appear at first glance to be straightforward
in their use, application, and purpose.
However, courts throughout the United
States have often struggled with interpreting
warranties and applying them to a particular
set of facts. This lack of uniformity
has led several commentators to remark
that the legal concept of a warranty is “a
freak hybrid of the illicit intercourse of tort
and contract.”1
But when reduced to its essential core,
a warranty is a quality standard that a
seller is required to maintain. Contractors
and manufacturers generally provide an
express warranty that ensures that their
work will be free from defects and conform
to the contract documents. Likewise, the
warranties issued by most roofing manufacturers
typically cover any defects that
materially affect the roof’s performance or
cause roof leaks.
However, each roofing manufacturer’s
warranty is unique and embedded with
various caveats and limitations that can
have significant ramifications (both legally
and financially) to a building owner. In
1999, the National Roofing Contractors
Association (NRCA) published its Low-Slope
Roofing Materials Guide and included an
extensive chart that summarized the various
types of roof membrane warranties
offered by roofing manufacturers for builtup,
modified-bitumen, and single-ply roofs.
The chart is an excellent resource for
comparing the different types of warranties
being offered by roofing manufacturers
across the industry. Figure 1 represents a
simplified summary of the types of standard
warranties and their major differences,
which are being extended in today’s marketplace
by roofing manufacturers.
The bottom line is that there are countless
options when it comes to selecting
a roof warranty, and each manufacturer
offers various warranty levels, ranging from
the platinum, to the gold, to the standard-
issued warranty. The type, level, and
uniqueness contained within each warranty
can be both overwhelming and perplexing.
Roofing and Design
Professional Warranties
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Best practices suggest that professionals
should identify the different types of warranties
being extended and understand the
subtleties between each before making recommendations
to owners. Additionally, the
language contained in the warranty is often
considered boilerplate by the manufacturers
and will rarely be subject to change, thus
necessitating a well-prepared professional
to appropriately inform the owner about
potential future issues before the warranty
is specified.
While a roof warranty is intended to
clearly delineate the respective obligations
and liabilities of manufacturers and building
owners in the event of a dispute or product
failure, often the warranty may expose the
warrantor to far more liability than was
intended, and may also give the building
owner much greater recourse than was
expected. And the inverse can also be true,
depending on the jurisdiction of the dispute.
PRORATED WARRANTIES
Most, if not all, sophisticated roofing
manufacturers offer a prorated or a pro rata
warranty as part of their standard terms
and conditions. Under a pro rata warranty,
if there is a roof defect or failure before the
end of the warranty term, the manufacturer
will repair the affected area of the roof at a
cost that is dependent on the age of the roof
at the time of the complaint. Courts will
routinely enforce prorated warranties in the
event of litigation.2
Pro rata warranties benefit the roofing
manufacturer to the detriment of the building
owner because they reduce any money
owed to the owner based on the age of the
roof. The terms and the amount of the
proration language should be an item up
for negotiation before the roof warranty is
issued, provided that the manufacturer is
amenable to change. Best practices dictate
that the owner be advised that the value of
the warranty decreases as the roofing system
ages over time when the manufacturer
is unable or unwilling to modify its prorated
warranty.
Prorated warranties are relatively inconsequential
in the event of
minor roof leaks or deficiencies.
However, prorated warranties
become a much larger
issue as the roof reaches the
end of the warranty term or
the cost to repair exceeds the
remaining value of the warranty.
For example, assuming
your client’s roof cost $1
million to install, and the
contracted warranty value is
reduced by 5% each year, the value of the
warranty is dramatically decreased over
time. Additionally, if the cost of repairs
comes close to or exceeds the warranty’s
value, the manufacturer will likely take the
position that payment of the warranty value
is its only legal obligation to the building
owner. Figure 2 illustrates the value of a roof
warranty based on a 5% pro rata reduction
for each year following the initial $1 million
installation cost. It also assumes that the
cost to repair the impacted area of the roof
increases as the roof gets older.
Because proration can ultimately reduce
an owner’s recovery should a dispute arise,
the pro rata language contained in a warranty
should be examined and negotiated, if possible,
before the warranty is issued (Figure
3). Building owners should also understand
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Company Length of Covered Not Covered No Dollar Proration
Warranty Limit
A 15 years All roof water leaks in the Damage to structure, including Yes Yes
roofing systems consequential, incidental,
or special damages
B 40 years Any defects that materially Damage to structure, Yes Yes
affect roof performance including consequential,
or cause roof leaks incidental, or special damages
C 10 years Any defects that materially Damage to the interior or Yes Yes
affect roof performance exterior of the structure,
including consequential
incidental, or special damages
D 15 years Any leak in the roofing Damages to building, including No No
system lost profits, consequential,
incidental, and special damages
E 15 years Any leak caused by a defect Consequential or incidental No No
in the roofing system damages
F 15 years Any leak caused by a defect Consequential, incidental, No No
in the roofing system or special damages
G 10 years Any defects that materially Damage to structure, including Yes No
affect roof performance or consequential, incidental,
cause roof leaks or special damages
Figure 1 – Comparison of warranty language offered by various U.S. roofing manufacturers.
Value of Warranty Cost of Repair
Year 1 $1,000,000 $50,000
Year 5 $800,000 $150,000
Year 10 $550,000 $350,000
Year 15 $300,000 $500,000
Year 20 $50,000 $700,000
Figure 2 – Value of 20-year warranty based on
5% pro rata reduction for each year that the roof
remains in place.
that the value of the warranty
decreases as the roof
ages. Nevertheless, even if
the owner is successful in
securing a non-prorated
warranty, courts across the
United States are split on
the issue of whether a roofing
manufacturer is entitled
to a prorated reduction
of damages as a matter of
law when lawsuits are filed
based on roof defects or
failures.
Some Courts Rule That
Building Owners Are
Entitled to Full Damages
When a Warranty Is Not
Prorated.
Courts will enforce a
written warranty when it
states that a manufacturer’s
liability is limited or reduced on a
prorated or pro rata basis, depending on
the age of the roof. While rarely, if ever possible,
a building owner should attempt to
eliminate or soften any prorated language
in a manufacturer’s warranty. Non-prorated
warranties provide owners with their strongest
argument against manufacturers,
should a roof defect or failure necessitate a
costly repair or total replacement before the
warranty expires. Non-prorated warranties
also provide owners with legal grounds to
claim that a manufacturer is responsible for
all costs of repair or replacement.
Some courts follow the rule that building
owners are entitled to full repair or replacement
costs when a warranty is not prorated.3
These courts adhere to the legal principle
that the usual measure of damages is the
cost to restore the defective structure back to
its originally warranted condition.
A case from Delaware is particularly
instructive on this line of judicial reasoning.4
In 1975, a 14-story high-rise building consisting
of 177 condominium units was built on
the shores of the Atlantic Ocean. The building
also had commercial offices, retail space, and
recreational facilities. In 1986, the building
owner filed a lawsuit arguing that the defective
design and construction of the roof led
to water infiltration and structural damage
to the building’s interior. The owner’s expert
estimated that the total cost of repairing or
replacing the defective components ranged
between $13 and $15 million.
The roofing company had provided a
20-year non-prorated warranty. It argued
to the trial judge that the owner’s damages
should be offset or reduced because the
roof performed without issue for the first
11 years of its useful life. The manufacturer
also argued that full repair or replacement
damages would be unfair and create a windfall
to the owner because such an award
would result in providing the owner with
a new roof that would perform beyond its
originally warranted timeframe.
The trial judge sided with the building
owner and ruled that the owner could present
evidence of the total cost to repair or
replace the defective components. While the
court acknowledged that this ruling may
create a windfall to the owner, any added
value was outweighed by the potential of
giving the roofing company too much of
a benefit. The court ultimately ruled that
allowing evidence of the total costs to repair
or replace the roof was the only way to make
the building owner financially whole.
Other Courts Rule That Building
Owners’ Damages Are Offset or Reduced
Even if a Warranty Is Not Prorated.
Not all courts and states are as generous,
though, when it comes to awarding
damages to building owners on non-prorated
warranties. When a warranty is silent on
proration, roofing manufacturers will often
argue that the legal defenses of “betterment”
and “useful life” should be adopted to offset
an owner’s damages.
Betterment exists when
an owner uses a replacement
product that is of
greater quality than originally
specified. Where a
repair or replacement constitutes
a betterment of
the original construction,
some courts hold that the
manufacturer is not liable
for the additional cost.5 The
theory behind the betterment
defense is that the
manufacturer should not be
penalized when an owner
elects to use a replacement
product that is of greater
quality than that originally
called for in the parties’
agreement. Advancements
in roofing technology can
also lead manufacturers to
take the position that the replacement component
is a betterment over the originally
warranted roof.
Similar to betterment, some courts allow
manufacturers to limit their liability based
on the useful life defense. Useful life refers to
the anticipated lifespan during which a new
roof can reasonably be expected to perform
its intended function subject only to routine
maintenance and ordinary repairs for wear
and tear. Manufacturers often rely on useful
life evidence to reduce the owner’s claimed
damages by convincing a judge that credit
should be given for the period of time that
the warranted roof was functional.6
Proponents of allowing useful life evidence
believe that equity and fairness
require owners’ damages to be offset based
on the benefit they received from the alreadyexpired
useful life of the structure. This also
prohibits a building owner from receiving
a windfall. Many courts agree with this
rationale, and will only award partial damages
to building owners. These damages are
prorated to reflect the existing roof’s performance
prior to the alleged defect or leak.7
Courts inclined to rule in this fashion can
cause building owners to suffer serious
financial losses, especially when repair costs
are significant and the remaining term of
the warranty is limited. When building owners
are not properly advised or do not fully
understand their possible risk in this area, a
court ruling to this effect can create a public
relations nightmare for any professional.
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Figure 3 – Warranty language is often overlooked during the initial
phases of planning and can have serious future ramifications in the
event of a claim.
DIRECT AND CONSEQUENTIAL
DAMAGES
Industry norm is that roof warranties
disclaim any coverage for consequential
damages. Consequential damage waivers
are also often quickly absorbed as boilerplate.
Most manufacturers utilize that
exclusionary language in discussions with
owners to limit claims made under the
warranty (Figure 4). However, the mere disclaimer
of consequential damages does not
always preclude those damages from being
awarded in a lawsuit.
Courts have struggled for many years to
distinguish between direct and consequential
damages. Direct damages are defined as
those that follow immediately upon the act
done. They arise naturally and ordinarily
from the breach of the contract. For example,
when a manufacturer installs defective
flashing, the cost to repair the flashing is
a direct damage in the eyes of the law and
the responsibility of the manufacturer. But
what if the defective flashing causes water
to run into the interior of the building or
behind the walls? Is this a direct damage or
a consequential damage?
The legal definition of consequential
damage is injury or harm that does not
ensue directly and immediately from the
act of the party, but only from some of the
consequences or results of the act. For a
building owner to recover consequential
damages from the breaching party, the
damages must be reasonably foreseeable at
the time of contract formation.
It is certainly reasonable to expect that
a leaky roof could cause damage to a
building’s interior. However, some courts
(perhaps even a majority) have ruled that
damage to a building’s interior is a consequential
damage and is not covered under
a warranty that includes a waiver of consequential
damages. For example, in a roofing
case in the state of Indiana, the court found
that the cost to repair a leak constituted
a direct damage, but the cost to remediate
mold caused by the leak constituted a
consequential damage and, therefore, was
not recoverable by the owner.8 Other courts
have followed suit and similarly ruled that
water damage caused by a leak constitutes
consequential and not direct damage.9
There are other courts, however, that
have found that water damages caused by a
leak are direct and not consequential damages.
A court in Minnesota found that water
stains on the ceiling and damage to tangible
property inside a commercial storage facility
were a direct result of a leak. Therefore, the
damages were categorized as direct and not
consequential and were not excluded under
the terms of the warranty.10
The line between direct and consequential
damages can be quite blurry and not as
clear as one would think. Some manufacturers
are aware of this fact and how courts
have interpreted damage waivers contained
within their standard warranties. Should
building owners be unable to negotiate out
damage waivers or other exculpatory clauses,
a vague and unclear warranty on any
damage issues can be a way for owners to
secure more coverage under the warranty
than intended by the manufacturer.
COMMON WARRANTY-RELATED
ISSUES
In the authors’ experience, there are
other common warranty-related issues that
often arise during disputes over the scope of
a warranty and the legal obligations of a roofing
manufacturer. Some of these issues can
be addressed before the warranty is issued,
while others are simply areas of concern that
any professional should be cognizant of prior
to the construction process.
Use of Unspecified Materials and
Improper Design
Roof warranties often do not cover any
defects caused by improper design of the
building itself, the use of unspecified products,
or the use of products supplied by
someone other than the manufacturer. They
also do not cover defects caused by the
use of products that are not approved.
Manufacturers often use this language to
disclaim any liability for defects caused
by improper building design or the use of
nonapproved materials. And courts can be
receptive to this argument. For example,
a roofing manufacturer was found to be
not liable for defects and resulting damage
caused by an owner’s use of unspecified
fasteners that resulted in membrane punctures
to the roof.11 Because the owner used
products that were not specified, the court
found that the warranty terms were not followed,
and the manufacturer was absolved
of all liability as a result.
Failure to Report Leaks
Roof warranties require owners to report
and provide notice to manufacturers of any
leaks in the roofing system. A South Carolina
court ruled that the roofing manufacturer
of a commercial building was not liable for
breach of warranty when the building owner
failed to provide notice of a leak as required
under the warranty.12 While this may seem
like a harsh result, the notice obligations
are important because they allow for the
parties to get on the roof quickly and deter-
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Figure 4 – Roofing manufacturers commonly secure waivers of consequential or
indirect damages, which can exclude costs incurred to fix a building’s interior.
mine the actual source of the leak. Notice in
compliance with the warranty also aids in
the early detection of any leak and can mitigate
further damage to the roof if the issue
is repaired immediately instead of being
allowed to fester. Professionals should stress
to owners the importance of complying with
the notice provisions in the warranty once a
leak is discovered.
Failure to Maintain Roof
Most warranties will exclude coverage
for leaks caused by an owner’s abuse or
neglect of the roofing system. They will
also disclaim coverage for leaks that result
from an owner’s failure to properly maintain
the roof. Some courts have found that
an owner’s failure to maintain the roof in
accordance with the warranty terms constitute
grounds for a roofing manufacturer to
escape liability.13
The interplay between the warranty and
an owner’s failure to maintain the roof is
dependent on the factual circumstances.
Likewise, when failure-to-maintain issues
arise, the question of whether the failure
is material and whether the failure is the
actual cause of the leaks is an area that is
ripe for expert testimony.
Installation According to Specifications
Roofing warranties also do not cover
any defects caused by an owner’s failure to
follow specifications during installation or
defects caused by workmanship from failure
to follow the manufacturer’s specifications.
This is a common provision that the manufacturer’s
lawyer will rely upon when litigation
ensues over a defective roof.
Courts are also welcoming to this position.
The owner of a health and wellness
facility in Ohio sued its manufacturer for
breach of warranty after the manufacturer
refused to pay for the repair or replacement
of the roof system after it began to fail in
several places.14 The owner admitted that
the roof system was not installed in accordance
with the manufacturer’s plans and
specifications.
The owner argued, however, that the
manufacturer had waived any argument
regarding the faulty installation by issuing
the warranty after it had inspected the
roof and made other warranted repairs to
the system. The court rejected the owner’s
contention and found that the manufacturer
was not responsible in any way, given
the owner’s failure to install the system in
accordance with the manufacturer’s plans
and specifications.
Failure of Essential Purpose
When faced with a limited warranty or
a warranty that excludes the recovery of all
damages except direct damages, an owner
can possibly avoid the impact of the warranty
by demonstrating that the remedy
afforded to the owner fails in its essential
purpose. An exclusive or limited remedy
fails of its essential purpose where the warrantor
is unable to correct the defect or
otherwise provide the exclusive or limited
remedy within a reasonable time after the
defect is discovered.15
The essential purpose argument is factdependent
but will be enforced when the
manufacturer cannot replace a defective
component within a reasonable period of
time or cannot supply a replacement component
that matches or is comparable to the
original. Some courts even allow building
owners to recover all costs, including incidental
and consequential damages—even
when waived in the contract, when the
manufacturer’s warranty fails of its essential
purpose.16
WARRANTY TERMS AND
CONDITIONS ARE CRITICAL
The warranty issued to a building owner
by a roofing manufacturer can seem like an
insignificant event during the life of a major
construction project. The language, terms,
and conditions of the warranty, however,
are areas that can cause major complications
down the line. When faced with multiple
bids to construct a roofing system, the
warranties being offered by each manufacturer
should play a role in the decisionmaking
process. Warranty language should
be fully understood by the customer, and
professionals should take the time necessary
to make building owners aware of the
potential intended and unintended consequences
and risks that surround a warranted
roofing system.
References
1. W. Prosser. “The Fall of the Citadel
(Strict Liability to the Consumer).”
50 Minnesota Law Review. 791
(1966).
2. In re CertainTeed Corp. Roofing
Shingle Prods. Liab. Litig., 269 F.R.D.
468 (E.D. Pa. 2010) (holding that
proration is typical for warranty
payments); Zuzinec v. Barrett, 2006
WL 2354459 (Tenn. App. Ct. 2006)
(owner entitled to 88.56% of the
amount paid to have roof replaced
based on pro rata language in the
original warranty).
3. Shaw v. Bridges-Gallagher. 528
N.E.2d 1349 (Ill. App. Ct. 1988);
The Five M. Palmer Trust v. Clover
Contractors, Inc., 513 So.2d 364
(La. App. Ct. 1987); Stony Ridge
Condominium Owners Assn. v.
Auerbach, 410 N.E.2d 782 (Ohio
App. Ct. 1979).
4. Council of Unit Owners of Sea Colony
East v. Carl M. Freeman Assocs. 564
A.2d 357 (Del. Super. Ct. 1989).
5. Fleming v. Scott. 348 P.2d 701 (Colo.
1960).
6. Ronald M. Sandgrund & Scott
F. Sullan. Useful Life Evidence
in Construction Defect Cases,
Construction Lawyer. (2007).
7. Panorama Village v. Golden
Rule Roofing. 102 Wn. App. 422
(Wash. App. Ct. 2000); Community
Television Servs., Inc. v. Dreser Inds.,
Inc., 435 F.Supp. 214 (S.D. So. Dak.
1977); Whitman Hotel Corp. v. Elliott
& Watrous Engr. Co., 79 A.2d 591
(Conn. 1951).
8. Pizel v. Monaco Coach Corp. 2005 WL
1842890 (N.D. Ind. 2005).
9. Harnden v. Ford Motor Co. 2006 WL
931946 (E.D. Mich. 2006); Hills of
Palos Condominium Assocs., Inc. v.
I-Del, Inc., 626 N.E.2d 131 (Ill. App.
Ct. 1993).
10. Acceptance Ins. Co. v. Ross
Contractors, Inc. 2006 WL 4482104
(Minn. App. Ct. 2006).
11. Bridgestone/Firestone, Inc. v. Prince
William Square Assocs. 463 S.E.2d
661 (Va. 1995).
12. Park Place Corporation v. Seaman
Corp. 169 F.Supp.3d 635 (D. S.C.
2016).
13. Duggleby Bros. v. Lewis Roofing, Co.
116 N.W. 711 (Iowa 1980).
14. Continental Cas. Co. v. Honeywell
Internatl., Inc. 2009 WL 313127
(N.D. Ohio 2009).
15. Mercedes-Benz of N. Am., Inc. v.
Dickerson. 720 S.W.2d 844 (Tex.
App. Ct. 1986).
16. R.W. Murray Co. v. Shatterproof
Glass Corp. 758 F.2d 266 (8th Cir.
1985).
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