This article is a companion piece to the roofing subrogation episode of our educational podcast, On Subrogation: Raising the Roof on Roofing Cases, where Rathbone attorneys Steven Alsip and Rebecca Wright discuss the ins and outs of subrogating a property damage case where roof failure caused the incident of loss.
Most subrogation property claims fall into one of two categories: fire or water. Of the water claims, most either involve plumbing or roofing claims. Roofing subrogation claims can prove difficult, which lead many insurance professionals to cut their losses on property damage suits involving roofs. You may be unsure about subrogating a roofing claim, because of the difficulties in proving fault.
However, these are often actionable and viable subrogation cases. Furthermore, the damages at issue can often be very high, especially where roof failure has led to internal property damage. Actively pursuing a subrogation claim against any liable party can maximize your ability to recover from such a financially-devastating event.
What Do You Need for a Successful Roofing Subrogation Case?
The first step in a subrogation investigation is to determine what exactly happened. What caused the roof to fail? Were the roofing materials faulty to begin with? Or were they negligently installed? Usually, roofing cases come down to three possible negligent parties: the manufacturer, the material reseller, and the installation contractor.
Subrogating Against the Roofing Manufacturer
For residential roofing, manufacturer warranties usually cover only 5 years. So, if a roof is 20 years old, the warranty is often an unavailable avenue of recovery. Additionally, a claim against the manufacturer only covers product defects. Thus, it’s only available if you can show that the materials were properly stored and properly installed on a properly-constructed roof, and that the roofing materials failed nonetheless.
Subrogating Against the Roofing Materials Reseller
Often, roofing materials don’t go directly from the manufacturer to the roofer. Rather, they spend time in the hands of a middleman – a roofing materials reseller. This is important to note, because roofing materials can prematurely deteriorate if they are left out in the sun for too long. Therefore, a subrogation team investigating the history of the roofing materials at issue needs to identify this party.
Find out if the materials were stored indoors or outdoors, covered or uncovered, at what temperatures, and for how long. An expert examining roofing shingles can look for evidence of improper storage. Evidence of improper warehousing may mean that the manufacturer isn’t liable, but the materials reseller is.
Subrogating Against the Roofing Installer
The roofing contractor is often the first defendant that comes to mind in a roofing case. An inspection can determine if a roofer used the wrong tools for the job, performed the installation incorrectly, allowed shingles to deteriorate, let water in, improperly installed flashing, improperly applied sealant, etc.
Keep in mind, even if you find that the material reseller is a possible tortfeasor, this in no way shields the installer from subrogated liability. There are a couple reasons for this: (1) if the roofers knew the materials were defective/aged/damaged, or (2) if the roofers should have known they were using compromised materials (i.e. visible shingle deformations, brittleness, etc). In these cases, the roofing installer would have breached their duty of care, making them a liable party in the property damage claim.
Pursuing the installers is not without challenges. It’s a high turnover industry, and contractors can be hard to locate. Property subrogation teams talk about “taillight warranties” – warranties that are only good as long as you can see their taillights while they drive away. Another obstacle many roofing installers will use in these types of property subrogation cases is the independent contractor defense, which the right legal team has the ability to overcome.
The Importance of Roofing Subrogation Claim Inspections
In the initial investigation and adjustment phase of a subrogation lawsuit, figuring out exactly what happened is vital to building a strong foundation for your case. Roof claims are much different than other property claims, for example those for fire damage, because everything that went wrong, and everything that caused it to go wrong, are all still sitting there.
In an ideal situation, you want to invite all interested parties to attend the inspection. This includes potential parties such as any and all installers, property managers, owners, renters, tenants, neighbors, contractors, and sub-contractors. This way, should the subrogated matter proceed to litigation, any adverse or tortious parties cannot claim they were not given equal opportunity and access to investigate the site of the roof damage.
Formal roof inspections with all interested parties present are preferable, but not always possible. Weather may make it necessary to begin roof repairs immediately. If a rainstorm is on the way, it is imperative to cover the house as soon as possible in order not to add damages to the homeowner. In that case, hire a reputable roofer who can become your expert. Instruct them to take detailed pictures showing the roof damage, and try to save materials as evidence with a proper chain of custody.
Determining What Went Wrong with the Damaged Roof
A roofing expert can potentially get up on the roof at issue and take pictures that definitively show the negligent act. There are many reasons a roof can fail, and they are often visible to a trained eye. When it comes to faulty installation, high winds are often what caused the damages. As a result, the most common defense by the installer is the Act of God Defense, claiming they cannot control or predict storms. But spoliation in roofing claims is also a reality, a concept you can learn more about on another podcast of On Subrogation. However, this defense is not always sound; there are several other reasons wind can damage a roof due to human error or negligence in installation.
A few key questions a subrogating legal team can ask a roofing expert in determining if the installer is the at-fault party:
- Did the roofer fail to remove enough of the old roofing material before they installed the new roof? A new roof installed over an old roof is almost impossible to seal correctly.
- Were the nails used too short? Nails that are not long enough will fail to properly secure shingles, making it easy for wind to dislodge them.
- Were staples used where nails were indicated? There is not a reason to see staples in a residential roof installation.
- Were the nails correctly placed on the shingle? Nails should be placed in a way that they are then covered by the shingle above, otherwise water can easily intrude.
- Were the shingles misaligned, causing misdirection of the water line?
- Did the roofer use the wrong materials, such as angled roof materials on a flat roof?
- Were the materials rated for the types of weather wind speeds common in the area? Roof shingles are wind-rated. If your insured lives in an area known for high winds and/or prone to hurricanes, but the installer only used 60 mph shingles, negligence can be argued.
- Was the flashing properly installed? Poorly-installed flashing can render a roof seal useless.
- Were the seals installed correctly?
If everything above checks out, look back to whether roofing materials were visibly compromised when they were installed. Claims adjusters and investigators should also look to the structure beneath the roof; if the roof was installed on beams with visible deformation, fray, rot, etc, there is also a route to holding the installer responsible in a property damage dispute.
Simple Scam? Subrogating an Intentionally Damaged Roof
Why would someone intentionally damage a roof? Unfortunately, this happens. It’s usually a roofer trying to drum up business; they’ll damage the roof and then claim there was storm damage so they can then replace your roof. But a thorough investigation at the outset of your property damage claim can often expose when a perfectly good roof has been intentionally damaged:
They tend to pop up in geographical groups, often after a weather event. A roofer goes door to door, often targeting the elderly. They offer the homeowner a free roof inspection. Then, they go up and mimic the recent weather damage.
Hail damage can be mimicked by hitting the roof with a hammer in random places. Wind damage can be simulated by bending shingles back until they break. The roofer may photograph the damage to show the property owner and submit it to insurance. The homeowner then uses that payout to pay the roofer to replace a roof that they, in fact, damaged.
However, an expert can usually spot the difference between true and simulated weather damage:
In the case of hail, real hail is random. It will hit many different spots, but it will also hit the same spot over and over. Most tortfeasors attempting to simulate hail will hit the roof in a random pattern, but never hitting the same spot two times or three times. In addition, hammers damage shingles much more than hail does. Hailstones are pieces of ice that drop onto a roof; they don’t have the density to crush a shingle with the force of a direct hit from a hammer.
In the case of simulated wind damage, several discrepancies may present themselves. First, shingles that have been ripped with force away from the shingle below will show signs of having the shingle matting transfer from the lower shingle to the higher one, whereas wind damaged shingles will rip off because the shingle matting was already debonded.
Second, damaged shingles should not appear next to other debonded shingles that remained undamaged. Generally, strong winds will rip all the debonded shingles in an area; it does not selectively damage some weak shingles while leaving others perfectly in place.
Third, the damage may be present on the wrong face of the roof – not aligning correctly with the storm directionality of the wind alleged to have caused the damage. And finally, the damaged shingles are all grouped together in a particular area that was easy for the roofer to access (such as near his ladder).
As you can see, a skilled roofing expert with a trained eye has a lot of potential evidence to work with, and a thorough subrogation investigation may be able to confirm wrongdoing on the part of a roofer.
Roofing Scams Don’t Always Include Intentional Damage
There are other tortious methods to scamming a homeowner into replacing their roof which don’t require damaging the roof. A few of these subrogation cases we have seen at Rathbone Group include:
In an Ohio case, a door-to-door salesman would go into the homeowner’s attic, peel insulation down and claim it was wet. The roof is leaking and needs to be replaced. In one case, while the roofer was working on the new roof, the homeowner went up into their attic and realized all their insulation was actually bone dry.
In a Minnesota case, a roofer would offer free inspections, go up on the roof, and return with a strange black substance they claimed was proof the roof was worn and needs replaced.
In a Texas, a roofing scam was uncovered that included not only the roofer, but the claims adjuster as well as an inspector.
The Subrogating Party’s Evidence Checklist
In conclusion, when an insurance company is looking at paying out a roofing claim, the subrogation team managing the case should begin compiling the following information to build a case that the property damage was caused by intentional and/or negligent action:
- Detailed photographs
- Physical roof materials after removal
- Name of manufacturer
- Type of materials used, wind ratings, recommended uses
- Copy of Manufacturer’s Warrantee
- Name of material reseller
- Physical space and time material reseller warehoused roofing materials
- Historical wind data, obtained from the National Oceanic and Atmospheric Administration
With all this information in hand, you may have a strong and high-dollar subrogation claim to work with in a case where you might have thought the damage fell under the “Acts of God” clause of an insurance policy.
A National Subrogation Law Firm Committed to Education & Excellence
Rathbone Group is committed to insurers’ right to subrogation recovery, which is why we work to educate and inform insurance professionals on these sometimes opaque legal processes. Listen to the podcast for more details and examples of case law regarding property subrogation cases for damaged roofs, and check out our podcast library and YouTube channels for more episodes of On Subrogation.
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