Are COVID-19 Liability Waivers Enforceable?

The novel coronavirus, or COVID-19, has fundamentally changed the way Americans do business. Because of the pandemic, business owners now face the dilemma of either trying to keep up with constantly changing orders, rules, and guidelines to keep their doors open, or staying closed and possibly losing their businesses forever.

In this ever-changing world, businesses, especially those providing essential services, need to be proactive to limit the risks associated with the pandemic. This requires businesses to not only protect their employees and customers; it also requires them to protect their bottom line. In addition to complying with all applicable government rules and regulations, many companies are seeking to limit their potential exposure to COVID-19 related claims by seeking liability waivers from their customers.

A liability waiver is a contract between a business and a customer that educates the customer about the risks he or she is undertaking when participating in an activity and seeks to limit the business’s liability for such risks. When customers sign a liability waiver, they acknowledge that they understand the risks associated with the activity and agree to accept them. The customer also typically agrees to waive or limit the right to sue the business for injuries sustained as a result of the activity. Most people have been presented with a liability waiver at some point or another before participating in a potentially risky activity, such as sports, scuba diving, skydiving, or outdoor adventures. However, due to the risks associated with COVID-19, these waivers are now becoming increasingly prevalent for more common and traditionally less risky activities, like dining in a restaurant, shopping in a store, or simply entering business establishments as they begin to reopen.

At this point, it is too soon to tell how much weight these waivers will carry in court. Ultimately, the effectiveness of the waivers may vary from state to state. For example, Virginia and Montana do not allow any liability waivers. New York law provides that a liability waiver is only enforceable so long as it does not violate the public’s interest, it is clear and coherent, and the intention of the parties is unambiguous. (See Gross v. Sweet, New York 1979.) Illinois courts strictly construe liability waivers against the party that drafted them (i.e., the business). (See Harris v. Walker, Illinois 1988, which held “exculpatory clauses are not favored and must be strictly construed against the benefitting party, particularly one who drafted the release.”) And Connecticut courts rarely uphold liability waivers in personal injury claims. (See Hanks v. Powder Ridge Rest. Corp., Connecticut 2005, where a liability waiver was found unenforceable for snow tubers who had no ability or right to control the activity.)

While there may not be a common set of rules for liability waivers among the states, there are some basic legal principles that are almost universally accepted. One is that waivers that limit actions arising from intentional or grossly negligent conduct are unenforceable. (See Mero v. City Segway Tours of Washington DC, D.C. 2013: “Because District of Columbia law prohibits release from liability for grossly negligent, reckless, or intentional acts, the Agreement will not be held to indemnify defendant with respect to such conduct.”) This means parties cannot immunize themselves from claims where they have acted intentionally or with gross negligence. (See Restatement [Second] of Contracts § 195 [1981]: “A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.”) Although states and jurisdictions may define gross negligence and intentional acts differently, the overarching premise is its intended conduct, reckless activity or, at the very least, something more egregious than simply failing to act with ordinary care. Depending on how the laws are interpreted and applied to the facts of a particular situation, there is certainly a possibility that exposing someone to a known risk of contracting coronavirus could be considered intentional or grossly negligent, thereby negating the effect of any liability waiver that may have been signed.

Additionally, courts generally will not enforce liability waivers that are considered to be contrary to public policy. In other words, most jurisdictions will not enforce a waiver that involves a matter of great interest to the public. Given the contagiousness of the disease and its potentially deadly impact, it is certainly possible that courts will find that COVID-19 claim waivers are against the public’s interest. However, a counterargument could also be made that these waivers are essential and mandated by public policy because without them, coronavirus-related personal injury or wrongful death claims could potentially force businesses into bankruptcy.

The federal government is currently considering legislation that will create a safe harbor for businesses and nonprofit organizations that follow federal and state guidelines for COVID-19 to protect them against lawsuits. Perhaps they should also consider a COVID-19 compensation fund, similar to the one created by Congress following the 9/11 attacks, to compensate victims and insulate businesses from liability. It is unknown whether any such legislation will pass and even if it does, what protections it will provide — particularly if it requires compliance with the ever-changing and often confusing federal and state guidelines to be effective. Unless or until there is clear legislation and legal precedent governing COVID-19 liability for businesses, business owners may want to seriously consider obtaining liability waivers from their customers to create an additional legal hurdle to bringing a claim or, at the very least, to try and mitigate their liability by providing proof that the customers signing the waivers acknowledged the risk associated with the activities they voluntarily agreed to participate in.

About the authors: Brian Oblow is a Partner at Cotney Construction Law who represents clients in all aspects of construction law and arbitration. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for NRCA, FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Architects and Roof System Designers: Your Details and Drawings Are Seriously Lacking Design Intent

Dear Mr. and Ms. Architect and Roof System Designer:
The following are comments I hear over and over:

  • “Seventy-five percent of the time I cannot determine what roof assembly an architect wants from a spec.”
  • “One always feels they have to play private detective and try to figure out what [a roof system designer] actually wants.”

As an architect and registered roof consultant, I take great pride in my roof system designs and detailing, which are project specific, at minimum meet the code, and more often than not exceed code with all conditions and building components that impinge on the roof detailed for the specific project. In listening to construction managers, general contractors, roofing contractors and suppliers talk, you would think that architects barely know that the roof is on top of the building! It seems most do not even have basic knowledge and certainly don’t know when water may flow uphill. This is embarrassing to hear! It starts in the university with the curriculum placing all emphasis on building design and not how to actually construct a building. In many ways, this is good for my firm as we are busy fixing what should never have required fixing.

Peer review of several projects designed by very large (and what you would assume to be very sophisticated firms) and even small boutique firms reveals the following:

A. The roof system design is not code compliant in regard to tapered insulation.

B. The roof system itself is not code compliant, but contract documents require “contractor to verify or be responsible for code compliance”. This begs the question: Who is being paid to design? Is it the architect or the contractor?

C. Structural and, especially, structural lightweight concrete pose significant roofing challenges and architects have no clue about that, resulting in roof systems in danger of imminent failure.

D. The accuracy of construction documents in general is very, very low. Even I cannot often determine what roof assembly an architect wants from a specification.

  • 1. For example, architects do not list products in the specs that will be used in the assembly.
  • 2. Substrate boards, cover boards and vapor barriers are frequently listed in the specs but never shown on the plan.

E. The detailing of wall air barriers to roof vapor or air barriers is not shown and certainly no definition of responsibility prescribed as to who is to tie these materials together.

F. Understanding of material limitations is non-existent.

  • 1. Weather, wind, cold, snow, humidity and temperature affect the installation of roof system components. I especially get a kick out of seeing water-based adhesives being specified for construction taking place in winter; this means future work for my firm.

G. Roof edges and how they terminate at high walls is never detailed.

H. Roof drains and curbs are improperly or not detailed.

I. Specifications are inadequate—often boilerplate generic—and do not match the drawings. I’ve also seen non-specific details that are not to scale or do not reflect actual conditions.

  • 1. Design wind speed is not given when appropriate.
  • 2. Warranty requirements are in- correct, not thought-out or not specified at all.

J. Architects or consultants sometimes have multiple designs listed in the specification, leaving it to the con- tractor to issue RFIs that, more often than not, are not answered.

  • 1. These inconsistencies lead to frustration and, in many cases, the contractors just decide it is not worth the time or effort to even bid the project or add a good deal of money to cover undefined items.

K. I’ve witnessed owners who have hired professionals to design build- ings costing hundreds of millions of dollars, and yet these “professionals” often do not exhibit the standard of care expected.

  • 1. Poor designs compound when met with an irresponsible contractor who will not do his or her due diligence and investigate what is needed to install a quality system.

Illustrations: courtesy of Hutchinson Design Group Ltd.

Pages: 1 2 3 4

Single Insurance Policies that Insure All Parties on a Specific Construction Project Offer Benefits and Risks

With the use of wrap-up insurance policies on the rise for commercial construction projects, many contractors and subcontractors have questions about how these policies work and what unique concerns and questions they present.

Generally, wrap-up insurance refers to single insurance policies written to insure all parties involved in a specific construction project—providing coverage for the job-site risks of the owner, construction manager, general contractor, contractors, subcontractors and design firms—instead of the individual parties each purchasing and carrying their own insurance policies. Wrap-up insurance policies are most commonly used on very large commercial or public projects. Many project owners and general contractors have found that using these policies is an effective risk-management technique for handling loss exposures related to single and multiple-site construction activities.

With wrap-up insurance, the cost and extent of coverage are generally within the owner’s control.

With wrap-up insurance, the cost and extent of coverage are generally within the owner’s control.

Benefits

There are two primary types of wrap-up insurance policies: Owner Controlled Insurance Policies (OCIPs), in which the project owner is the primary sponsor, and Contractor Controlled Insurance Policies (CCIPs), which are controlled by the general contractor. Additionally, owners and general contractors can cover multiple projects under a single program in Rolling Controlled Insurance Policies (RCIPs). Typically, wrap-up insurance policies include general liability, workers’ compensation/employer liability, excess liability and builder’s risk as standard coverages, but many owners also add coverage for project environmental liability and project design team errors and omissions.

The benefits of using wrap-up insurance are numerous, especially for the owners or contractors who sponsor them. A successful wrap-up insurance program can significantly reduce risk for owners or contractors, giving them more control over insurance coverage for all the parties and avoiding unpleasant surprises about the extent of coverage parties have. Under the traditional model, owners or general contractors establish minimum insurance requirements for subcontractors and require them to furnish a certificate of insurance specifying coverage areas and limits. However, because all insurance policy terms differ slightly, there is no guarantee that a given subcontractor’s insurance will be adequate, or still in force, at the time of a loss. Furthermore, contractors and subcontractors normally have to build their insurance costs into their contract costs, and this increases bid amounts.

With wrap-up insurance, the cost and extent of coverage are generally within the owner’s control. When sub-contractors no longer have to increase their bids to factor in insurance costs, owners claim they can utilize the cost savings to fund the costs of the wrap-up insurance. And the potentially more streamlined process for handling claims can make prospective litigation less time-consuming and costly.

Risks

OCIPs and CCIPs, of course, come with their own set of risks and drawbacks for owners, contractors and subcontractors, and the parties who are asked to enroll in these policies do not always look upon them favorably. Some subcontractors and contractors have found that enrolling in wrap-up insurance policies is administratively burdensome and that the resulting decrease in volume of insurance purchases for their companies can increase the costs of other insurance they must purchase. Additionally, subcontractors should make an effort to understand the limits of coverage; it may differ from the coverage in the policies they have been accustomed to using. This should be done at the procurement stage, before a project begins, and not later, after project contracts have been signed.

Those investigating the level and limits of coverage will want to determine how responsibility for any injuries, losses or damage will be addressed and confirm that the responsibility is outlined in the building contract or the written wrap-up policy. One potential source of misunderstanding is builder’s risk coverage. Often, builder’s risk insurance is carried by the builder. With wrap-up policies, owners and general contractors may be particularly concerned with the scope of the builder’s risk coverage. For example, if a wrap-up policy excludes property damage occurring during construction but the builder’s risk policy excludes faulty workmanship, a potential gap in coverage would exist. The wrap-up insurer might take the position that it won’t pay for what is essentially a builder’s risk claim. To prevent such an outcome, owners may find they need to add coverage to the builder’s risk policy to cover faulty work or at least repairs.

Pages: 1 2