Lumber Insurance

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Can a sawyer be held liable for the structural integrity of his wood? February 28, 2004

Does a sawyer need liability insurance to cover the structural integrity of lumber sawn and dried for a client? I have a client that wants to use lumber from trees on his property for part of his house and barn. Species are poplar, sweet gum, oak, ash, pine and beech. Are all these species usable for framing in a house? Once dimensionally sawn and dried, if the wood failed, would the sawyer be liable? I know the general response would be have it in a contract that you are not, but has anyone ever experienced this and if so, is liability insurance for the structural integrity due to process an issue?

Forum Responses
(Sawing and Drying Forum)
From Gene Wengert, forum technical advisor:
My son, an attorney licensed in several states, says that you need to ask an attorney in your state as the laws vary from state to state. He said that there are some situations where you could potentially be liable. To defend a lawsuit is very expensive; a jury trial could easily cost $200,000. Have an attorney draw up a document that would limit your liability. In any case, your sawmill business must be a business (often an LLC) and not just something you do without incorporation. If sued, they can only sue the business and not your personal assets.

Note that insurance to protect your mill from liability is very expensive and not practical for small businesses.

From contributor J:
It would seem that some open and notorious action on the sawyer's part would have to alleged and proven for a court to find liability. The material strength of the lumber is based on the species and size of the individual boards. The strength of the assembled house is the end result of the application of good design and engineering practices. Proper species selection on the part of the builder is another matter. An architectural decision would have to be made on the application of each species to the building into which it is applied. The grade of each piece of timber comes into this process, too.

From Gene Wengert, forum technical advisor:
Although the above is correct, there are those people who will take you to court. Because it is so expensive to go to trial ($200,000 minimum), you will be tempted to settle out of court for a lesser amount. This is true even if you are 100% non-liable. (Also, remember that juries are not always fully reliable when it comes to technical matters. The "other side" can often find an inaccurate witness. There was one case in Virginia where it was alleged that the steam emission from a kiln traveled one mile through the woods to a highway and obscured the view (POW! Accident.) of drivers. This is even though satellite photos taken within 15 minutes showed fog in the area and the airport 35 miles away reported light fog, with wind direction in the opposite direction from the accident -away from the highway. However, a state patrolman reported that he had seen fog nowhere else and that the fog smelled like smoke. His testimony was fatal, even though you and I know that kilns do not smell like smoke and the whole scenario is silly. The jury chose to believe him.

From contributor G:
Structural lumber has to have a grade stamp, in most areas. The stamp certifies that it meets requirements for the grade. The grading association that issues the stamp has to stand behind the grade. Whoever engineered the project has to make sure the right grade and size is used. Also, whoever inspects the project is liable. When the lumber leaves your yard, you have no control how it is used. But if it is not graded and stamped and it does get used, then you are liable, because you determined it was fit for the job. Never sell structural lumber, even for a shed, unless it is graded or the engineer can inspect it and sign off on it. Some of it must meet stress testing; that is an expensive process. The best advice is: if you don't have a legal stamp or an engineer to certify it, don't sell it. Beams and timbers in log and post and beam construction can sometimes be inspected by a bonded engineer. They will usually oversize them, and specify species.

From the original questioner:
I found the NC statute. Basically, I cannot sell structural lumber without a grade stamp legally. I can cut into lap siding or other lumber that can be used in non-load bearing functions without legal consequence. I will shy away from any structural lumber and I will stipulate that it can't be used as such.

2303.1.1 Lumber.
Lumber used for load-supporting purposes, including end-jointed or edge-glued lumber, machine stress rated or machine evaluated lumber, shall be identified by the grade mark of a lumber grading or inspection agency that has been approved by an accreditation body that complies with DOC PS 20 or equivalent. Grading practices and identification shall comply with rules published by an agency approved in accordance with procedures of DOC PS 20 or equivalent procedures. In lieu of grade mark on the material, a certificate of inspection as to species and grade issued by a lumber grading or inspection agency meeting the requirements of this section may be accepted for precut, remanufactured, or rough-sawn lumber, and for sizes larger than 3 inches (76 mm) nominal thickness.

Approved end-jointed lumber is permitted to be used interchangeably with solid-sawn members of the same species and grade.

From contributor W:
There should have been laws like that 100 years ago. Now there are all of these unused barns that are half rotten and still standing using home-sawn, ungraded lumber.

Use some common sense, because some of the crap at the big box stores certainly wouldn't pass some of those stress tests.

From contributor A:
Why not hire someone to inspect it? Sounds like a possible "value added" to me.

From the original questioner:
Absolutely. This is the option that I would add to sawing the dimensional lumber. If my client decides not to have it inspected, I can't cut it into dimensional for him legally, since that would be implicit in agreeing that the wood is okay to use.

From contributor B:
If you're really worried about this, tell an attorney that you want a contract that will hold you harmless against any Strict and/or Contingent Liability.

From contributor I:
I though you were a sawyer? Shouldn't your contract just state that you have been contracted to saw the timber as per the client's requested cutting list? If they want info on what to do with the timber in a constructional sense, they should find it. You could point them in the direction of that info, but explain that you are not dealing with a man-made product, and there might be some surprises, both good and bad.

From Gene Wengert, forum technical advisor:
If you saw lumber that you know is weak and unsuitable and do not mention it to your client, you are liable. Why? Because the client is expecting the customary treatment. A sawyer is the expert on wood. If you point someone in a certain direction, you are already taking some responsibility. What might seem logical to you may not be what is written in the law; in this case, your advice is not accurate for most situations. You are still responsible, in part, even if the owner of the wood is telling you how to saw.

Nevertheless, as I mentioned already, if someone decides to bring suit against you, even if they are wrong, it will cost you lots of money to defend yourself, to the point where you will settle out of court (pay them) even though you are correct. The key is to get the proper legal documentation ahead of time that will prevent anyone bringing suit against you to get very far at all, and to have your business properly incorporated. (It would cost you less than $300 to form an LLC.)

From contributor S:
I've only sawn structural beams once. I talked to county code enforcement and they advised that the end user (permit applicant) would have to have the lumber certified by an architectural engineer.

Fortunately, I have a friend who has done a lot of post and beam design and he was willing to inspect and approve the timbers. It was a matter of number, size and location of knots, species and soundness of the pith.

He had me saw one replacement for a timber that had a small amount of punk in the pith. We also oversized all the timbers as additional insurance.

From contributor G:
To get a grader to come grade lumber, it has to be laid out, and you must have enough volume to make it worthwhile. Most lumber grading associations will not grade for a portable mill. They will charge mileage to and from the grading site, plus an hourly rate and so much per board foot. It will not be cheap. If you saw dimension lumber
at your mill site, always put a disclaimer on the invoice when it is sold. When you are sawing a custom order and have knowledge that it will be used in load bearing situations, you are liable for damages, unless it is graded or certified by an engineer.

I have been in the same situation. We had sawn clear Doug fir rafters, and the inspector would not accept them without a stamp. They made us buy some from the lumberyard, they passed them. Two of them fell apart when we were driving the last nails.