This article is a companion piece to the roofing subrogation episode of our educational podcast, On Subrogation: Raising the Roof on Roofing Cases.
Most subrogation property claims fall into one of two categories: fire or water. Of the water claims, most either involve plumbing or roofing claims. 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 parties 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 room, and 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, et cetera. Additionally, if you find that the material reseller is a possible tortfeasor, this in no way shields the roofing (installation) company from subrogated liability, particularly if the roofers knew or should have known they were using compromised materials.
Pursuing the installers is not without challenges. It’s a high turnover industry, and contractors can be hard to locate. 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. Property subrogation teams talk about “taillight warranties” – warranties that are only good as long as you can see their taillights while they drive away.
Subrogation Claim Inspections & Experts
Ideally, a subrogation claim involves a formal scene investigation of your roofing claim. 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 weren’t given equal opportunity and access to investigate the site of the roof damage.
A roofing expert can potentially get up on the roof at issue and take pictures that definitively show the negligent act. There are lots of reasons a roof can fail, and they are often visible to a trained eye. For instance, few examples of questions a subrogating legal team can ask in determining if the installer is the at-fault party follow:
- Did the roofer fail to remove enough of the old roofing material and install the new roof in a negligent way?
- Were the nails used too short?
- Were staples used where nails were indicated?
- Were the nails correctly placed on the shingle?
- Were the shingles misaligned, causing misdirection of the water line?
- Did the roofer use the wrong materials, such as flat roof materials on an angled roof?
- Were the materials rated for the types of weather wind speeds common in the area?
Subrogating the 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 can often expose when a perfectly good roof has been intentionally damaged.
First, 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. 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.
However, an expert can usually spot the differences. 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.
Fourth, 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 good 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.
When There’s No Time for a Formal Inspection
Formal roof inspections are preferable, but not always possible. Weather may make it necessary to begin roof repairs immediately. 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.
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.