VibrationPropertyDamageDevelopers and construction firms often elect to use heavy equipment, blasting or pile driving in the performance of their construction projects.   If your property is in close proximity to a construction project where heavy equipment, pile driving or blasting is being used, your property may incur damage related to the vibration caused by these activities.

If you believe your property has sustained damage due to vibration-related sources, you can assess whether your damage was the result of vibration by using any of the following methods:

Pre-Construction Condition Surveys – Prior to beginning the construction project, the contractor most likely prepared a pre-construction condition survey of the properties adjacent to the construction project in order to document any existing damage to the properties.  This document may include photos and/or video of the properties, along with notations of any existing damage.  This document or report is usually available from the building contractor or developer.

Seismograph Reports – A seismograph can be used to monitor the vibrations being caused by the construction activities and to document the intensity of the vibration.  An analysis of this data would help determine whether the vibration intensities reached a level that could have caused damage to your property.

Historical Data – In some instances, there may be historical data as to the intensity of vibration caused by the use of certain equipment.  If such information is available, it may not be necessary to use a seismograph to assess the intensity of the vibration caused by specific construction activities.  This historical data may then be further analyzed in relation to the distance between your property and the equipment being used.

Property Inspection – The inspection of your property is the easiest and most obvious manner by which to assess whether your property has incurred damage from construction-related vibration.  Most importantly, you must determine whether the current visible damage pre-existed the use of the vibration-causing equipment by the construction company.  Clearly, if the damage to your property existed prior to the beginning of the vibration causing activities, the damage is not the result of such activities.

If you believe your property has been damaged by the use of heavy equipment, pile driving, blasting, or any other vibration inducing activities, you should contact an attorney with experience handling vibration damage claims.  Our firm has handled vibration damage claims on behalf of both residential and commercial property owners.

la-epa-mexico-earthquake-jpg-20140418As can be easily witnessed as you drive around town, construction companies often use blasting, pile driving, dewatering and heavy equipment in the performance of large construction projects.  Many times, damage can be caused to buildings on nearby properties due to the  enormous amount of vibration generated by these activities.  The question then becomes whether the cost to repair the damage caused by this vibration is covered under the property owner’s property insurance policy.

For many years, insurance companies sought to exclude coverage for such damage through the use of the “Earth Movement” exclusion found in most policies of insurance.  Although the exact wording of the definition may change from policy to policy, the usual earth movement exclusion language is similar to the following:

  1. We do not insure for loss caused directly or indirectly by any of the following.  Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss.

………..

  1. Earth Movement, meaning earthquake, including land shock waves or tremors before, during or after a volcanic eruption; landslide, mine subsidence; mudflow; earth sinking, rising or shifting; unless direct loss by:

(1)  Fire; or

(2)  Explosion….

The question as to whether coverage should be afforded to this type of damage was heavily litigated for many years, until the Supreme Court of Florida finally clarified this issue in the case of Fayad vs. Clarendon National Insurance Company, 889 So.2d 1082 (2005).  After an in depth analysis of the issues, the answer finally given by the Florida Supreme Court was – “Maybe”.

In the Fayad case, the insured’s property had incurred a substantial amount of damage due to blasting activities taking place near their home.  When the insureds presented a claim for this damage, their insurance company denied their claim based upon the insurance policy’s Earth Movement exclusion.

Ultimately, the Florida Supreme Court found that the subject insurance policy DID provide coverage for this type of loss and that the insurance company was responsible for the payment of the insured’s damages.  The Court based its decision on the specific language of the subject insurance policy and the fact that the policy seemed to only exclude earth movement or vibration caused by a “natural event” as opposed to a manmade event.  Specifically, the Court concluded:

We interpret Clarendon’s earth movement exclusion to exclude damage caused by earth movement arising from natural events from coverage rather than damage cause by earth movement arising from any cause, including man-made events such as blasting.  

If the Supreme Court found that the policy covered this type of loss, why did I say that the Court’s ultimate answer was “Maybe”?   The reality is that insurance companies tend to learn from their mistakes and many insurance companies have since re-written their policies to clarify their intention to eliminate Earth Movement caused by any event – including manmade events such as blasting.  Therefore, if you believe you have damage to your property that may be the result of blasting, pile driving or other vibration activities, please contact our office so that we may review your situation and provide a free consultation as to your rights.