LIABILITY FOR CONSTRUCTION DEFECTS MAY BE COVERED UNDER COMMERCIAL GENERAL LIABILITY INSURANCE POLICIES

LIABILITY FOR CONSTRUCTION DEFECTS MAY BE COVERED UNDER COMMERCIAL GENERAL LIABILITY INSURANCE POLICIES

As we have written before, the construction industry is plagued by numerous construction defect claims, property damage claims and personal injury claims.  See our posts:

https://sites.google.com/site/metropolitanforensics/cause-and-origin-investigations-water-and-moisture-intrusion-in-buildings-with-exterior-insulation-and-finish-systems-eifs-or-stucco-veneers

https://sites.google.com/site/metropolitanforensics/cause-and-origin-investigations-rotted-walls-in-exterior-plaster-homes

Rotted exterior wall due to defective flashing installation

To repair and defend these property damages and construction defects it costs billions of dollars.  Certainly the builder/owner/contractor/sub does bear this liability.  The question then becomes:  is any of that covered by the CGL?

CGL was intended to be Third Party coverage

The most common means of insuring against property damage at a construction site is through "first party" coverage, e.g., builder's risk insurance.  From what we have seen, the overwhelming majority of the builders do carry builders insurance.  

 Protection of owners, developers, contractors and subcontractors against third party claims (claims by parties other than the parties to the contract, for example, claims by an adjacent property owner or claims by injured employees of the contractor against the owner) is the subject of CGL policies.  CGL insurance is thus commonly considered to be third party insurance. 

Due to the mounting construction defect claims by innocent third party homeowners who purchased defective homes, builders, contractors, etc. have sought to utilize CGL policies as first party insurance to cover property damage occurring at the construction site due to defective products and/or negligently performed work and/or damages that became apparent after the work was completed.  See for example the picture below showing a crack in the foundation wall seven years after the home was built.

Crack in the wall we discovered after the home was built and purchased by the homeowner.  Is the CGL insurer liable for defense and indemnity costs?

The insurers have sought to exclude from the coverage of CGL policies so-called "business risks", those risks thought generally to be under the control of the insured (contractor or subcontractor) and which are not regarded as fortuitous in nature.  The insurers argue that the CGL policy covers "accidental" property damage but does not cover uninsurable business risks.   

The insurance industry has resisted insuring contractors for property damage caused by "business risks" within the contractor's control.  This is similar to a standard homeowners’ insurance where the insurer will pay for water damage caused by a sudden and accidental release of water from defective equipment, but will not pay for damage that is caused by negligence, or lack of maintenance, or failure to reduce the damage, and so on.

Big Coverage Decisions in 2013 and 2014

In 2013 and this year, a number of very important commercial general liability (CGL) coverage questions have been handed down by various jurisdictions across the country interpreting a number of provisions found in the CGL policies.

The litigation issues between the insurer and the insured really come down to this:  

·         What is an uninsurable business risk (that is typically not covered by a standard CGL policy unless it was contracted for) and what was an accidental or fortuitous risk that in general is covered by a CGL policy.

As you can imagine, this is a fact-based question.  Insurers basically have been arguing that everything that a contractor does is a business risk or that the contractor or owner assumed a liability or risk in a contract and thus uninsurable.  Recently, a number of courts throughout the United States have tried to address the issue as to what is an assumed business risk and what is standard duty of care.

The courts ruled that if a developer or general contractor does not assume liability in a contract or agreement, then a CGL policy provided coverage to its insured for liability it incurred for alleged breaches of its contract with a third party.   

In Travelers Property Casualty Co. of America v. Peaker Services, Inc., July 22, 2014, Michigan appeals court agreed with Peaker that the contractual liability exclusion applied only in instances where the insured assumed the liability of another, and did not apply here.

At issue is the contractual liability exclusion that exists in the standard CGL policies.  As you know, just the defense costs in these construction defect cases can run into $200,000 or more.  If include the liability, then we are talking here about some really high numbers.  So naturally would try to avoid defense or indemnification if they can.  The way to do it of course is to file a declaratory action and to argue that CGL excludes contractual liability.  As is always the case, these cases are very fact specific and document specific.  So, be careful what you write in the contracts you are negotiating, because it may very well come back and bite you in the bottom; the bottom line that is.

The General Liability coverage form excludes contractual liability as follows: 

2. Exclusions.

This insurance does not apply to:

b. Contractual Liability

"Bodily injury" or "property damage" for which the insured is obligated to pay damages by reason of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages:

(1) That the insured would have in the absence of the contract or agreement; or

(2) Assumed in a contract or agreement that is an "insured contract", provided the "bodily injury" or "property damage" occurs subsequent to the execution of the contract or agreement. 

So basically contractual liability is excluded unless the agreement falls under the definition of an “insured contract”.

In Travelers Property Casualty Co. of America v. Peaker Services, Inc., July 22, 2014, Michigan appeals court agreed with Peaker that the contractual liability exclusion applied only in instances where the insured assumed the liability of another, and did not apply here.  The court also found unpersuasive Travelers’ contention that by failing to apply the contractual liability exclusion, the trial court had expanded the scope of the policy to include contract claims when the policy was meant to be limited to potential tort liability.

The appeals court noted that while the Regents brought a breach of contract action, the substance of the claim sounded in negligence because the Regents alleged that Peaker breached “the prevailing industry standards and practices.” The court repeated the prevailing rule that accompanying every contract is a common-law duty to perform with ordinary care the thing agreed to be done, and a negligent performance constitutes a tort as well as a breach of contract. 

Simply because the Regents brought a breach of contract versus a tort action did not determine whether coverage existed under the CGL policy. Rather, the policy’s grant of coverage turned on whether the property damage arose from an “occurrence.” In this case, Travelers made no argument regarding whether an occurrence had caused the university’s property damage in this case. The judgment in favor of Peaker was therefore affirmed.

Rotted exterior beam

Few months earlier, on January 27, 2014, the Texas Supreme Court Handed a Big Insurance Win to Construction Industry in Ewing Constr. Co. v. Amerisure Ins. Co. , 690 F.3d 628, 633 (5th Cir.2012).   

The Ewing Construction Co. v. Amerisure Insurance Co. saga began in 2008, when Ewing Construction entered into a contract with a school district to build tennis courts.  After Ewing completed construction, the school district complained that the tennis courts were flaking, cracking and crumbling, rendering them unusable.  The school district filed suit against Ewing, asserting claims for breach of contract and negligence.  Ewing tendered the defense to its general liability carrier, Amerisure, which denied coverage.   

Ewing sued Amerisure in federal court in Texas, seeking a declaration that Amerisure had breached its duties to defend and indemnify it in the school district’s suit.  On cross motions for summary judgment, the district court ruled in favor of Amerisure based on the contractual liability exclusion.  Ewing appealed to the Fifth Circuit, which affirmed the district court in a 2-1 opinion.  On rehearing, in an unusual turn of events, the Fifth Circuit withdrew its opinion and sent the case over to the Texas Supreme Court on certified questions:

1. Does a general contractor that enters into a contract in which it agrees to perform its construction work in a good and workmanlike manner, without more specific provisions enlarging this obligation, “assume liability” for damages arising out of the contractor’s defective work so as to trigger the Contractual Liability Exclusion.

In a significant win for the construction industry, the Texas Supreme Court answered the first question “no”.  The Amerisure CGL policy’s insuring agreement provided coverage for “property damage” during the policy period caused by an “occurrence.”  Amerisure did not dispute that the school district’s claim fell within the policy’s insuring agreement.  Instead, relying on the Texas Supreme Court’s opinion in Gilbert Texas Construction, L.P. v. Underwriters at Lloyds, 327 S.W.3d 118 (Tex. 2010), Amerisure contended that the policy’s contractual liability exclusion, which barred coverage for liability Ewing assumed in a contract or agreement, applied.  

Ewing argued that the exclusion did not apply because it excepts liability for damages the insured would have in the absence of the contract or agreement.  The court explained its decision in Gilbert where the insured had made promises to pay for the restoration of damages to third party’s property located outside to his client’s work area.  Ewing never made such promises or accepted any more liabilities that would normally perform in a typical construction job.  

Ewing argued that its agreement to construct the tennis courts in a good and workmanlike manner did not enlarge its obligation under the general law to comply with the contract’s terms and to exercise ordinary care in doing so.  This is the key.  Because its express agreement to perform the construction in a good and workmanlike manner did not add to its obligations, it thus was not an “assumption of liability” within the meaning of the contractual liability exclusion.  Importantly, Ewing did not add any language in the agreement with the school district to assume more liabilities than under its common law duty.

The Texas Supreme Court, distinguishing Gilbert, agreed with Ewing, concluding that the general contractor who agrees to perform its construction work in a good and workmanlike manner, without more (this is the key), does not enlarge its duty to exercise ordinary care in fulfilling the contract, and thus does not “assume liability” for damages arising out of its defective work so as to trigger the contractual liability exclusion.  In reaching its decision, the court affirmed its holding in Lamar Homes, Inc. v. Mid-Continent Casualty Co., 242 S.W.3d 1 (Tex. 2007), in which it held that a claim for an insured’s faulty workmanship can qualify as an “occurrence” under a CGL policy. 

Rotted OSB due to lack of flashing

Risk Management Services at Metropolitan

·         Serve as an integral part of the business management team as an outsourced risk manager

·         Overview current loss prevention and loss mitigation processes

·         Provide project management services to ensure critical processes are completed in a timely manner and consistent with overall needs

·         Provide an objective and independent expert evaluation of the current risk program, including a written report containing specific findings and recommendations

·         Identify and assess your current and potential risk of loss

·         Develop alternate (non-insurance) methods of risk financing

·         Assist in strategic planning to achieve long range risk management objectives

·         Develop risk management education coursework for specific needs

·         Provide guidance during merger, acquisition and divestiture activities

·         Provide expert witness and litigation support

Metropolitan Engineering, Consulting & Forensics (MECF)

Providing Competent, Expert and Objective Investigative Engineering and Consulting Services

P.O. Box 520

Tenafly, NJ 07670-0520

Tel.: (973) 897-8162

Fax: (973) 810-0440

E-mail: metroforensics@gmail.com

Web pages:  https://sites.google.com/site/metropolitanforensics/

We are happy to announce the launch of our twitter account.  Please make sure to follow us at @MetropForensics

Metropolitan appreciates your business.

Feel free to recommend our services to your friends and colleagues.

https://sites.google.com/site/metropolitanforensics/liability-for-construction-defects-may-be-covered-under-commercial-general-liability-insurance-policies

CAUSE OF EXPLOSION OF AIR COMPRESSOR TANKS

CAUSE OF EXPLOSION OF AIR COMPRESSOR TANKS

https://sites.google.com/site/metropolitanforensics/cause-of-explosion-of-air-compressor-tanks

There have been incidents where the air holding tank of a compressor explodes. Although manufacturing defects can caused a tank to explode, the leading cause of air compressor tank rupture is corrosion of the tank from water condensate. Basically these types of incidents are caused by failure to follow the operation and maintenance procedures listed in the owner’s manual for that particular equipment.

Water is a natural byproduct of compressed air. It always forms inside the tank. The condensation that forms inside the tank must be drained regularly to help prevent the bottom of the tank from corroding. In fact all air compressor tank manufacturers require that the tanks are drained on a daily basis after each use. 

The manufacturers also recommend closing the drain valves if the compressor will be stored for any length of time. This will prevent moisture from entering inside the tank and corroded.

Preventing catastrophic failure of any boiler or pressure vessel has always been a concern of the National Board. Boilers in dry cleaning operations, pressurized steam cleaners in jewelry shops, air compressors used by painters, pressurized air systems used with power hydraulic lifts in auto repair shops, even instrument sterilizers in dentists’ offices – all are capable of causing injury due to explosion. 

On one hand, they rarely are inspected for proper mechanical performance and structural integrity. On the other hand, their operators are occasionally guilty of rigging the wiring or controls intended to prevent potentially explosive operational problems. And as a complicating factor, each state or province has its own inspection rules, and most apply only to commercial operations of a certain size or to water heaters or steam heat systems in dwellings that hold four or more housing units.

Here are some incidents where the air compressor tanks exploded, causing property damage and even death.

December 2013, Canada

A 44-year-old man suffers extensive damage to his lower leg, forcing doctors to amputate the leg at the knee in hospital. He later died. The man and two friends were working to restore an antique car when the compressor explosion happened.

Air Tank Explosion, Malvern, PA

An air compressor tank exploded while it was being used at a home shop. The tank was not built to ASME code and not registered with the National Board. The drain valve on the tank was removed, probably because it was leaking, and replaced with a plug. 

The accumulation of water in the vessel caused severe corrosion and thinning of the metal on the bottom of the tank. Ultrasonic thickness testing revealed a thickness of .070 inches. At this thickness the tank should never have been allowed to be pressurized. The safety valve was set at 140 psi and the pressure controls were assumed to be working properly. When the pressure in the tank reached about 100 psi, the tank ruptured and flew across the garage. Luckily, nobody was injured.

Make sure you drain your air tanks on a regular basis!

Air Tank Explosion, White Plains, NY

This air tank compressor exploded in April 2009 at a homeowner's garage in White Plains, NY. No one was injured when the tank failed. The condensation that forms in the tank must be drained regularly to help prevent the bottom of the tank from corroding. Since this compressor was in someone's home garage, it was not required to be inspected.

Air Compressor Tank Explosion, Newark, NJ

This air tank compressor failed due to improper maintenance. The condensation that forms in the tank must be drained regularly to help prevent the bottom of the tank from corroding.

Metropolitan Risk Management Services (MRMS)

Metropolitan Risk Management Services (MRMS) is a professional service firm that specializes in outsourced risk management and advisory services. Based in the East Coast, the firm has several offices in the Northeast and Midwest, with clients throughout the United States, Canada, Europe and Latin America. 

While our clients are diverse businesses and organizations, each share a common approach - - a genuine desire to prevent and mitigate losses. Invariably, our clients value high quality professional advice, whether that advice is from safety consultant, engineers, attorneys, CPAs, or risk management and insurance advisors. 

Their goal is to obtain the best assistance available, fully recognizing the cost of identifying and confronting problems before they develop is always less expensive than addressing an issue after it is out of control.

Risk Management Services at Metropolitan

· Serve as an integral part of the business management team as an outsourced risk manager

· Overview current loss prevention and loss mitigation processes

· Provide project management services to ensure critical processes are completed in a timely manner and consistent with overall needs

· Provide an objective and independent expert evaluation of the current risk program, including a written report containing specific findings and recommendations

· Identify and assess your current and potential risk of loss

· Develop alternate (non-insurance) methods of risk financing

· Assist in strategic planning to achieve long range risk management objectives

· Develop risk management education coursework for specific needs

· Provide guidance during merger, acquisition and divestiture activities

· Provide expert witness and litigation support

Metropolitan Engineering, Consulting & Forensics (MECF)

Providing Competent, Expert and Objective Investigative Engineering and Consulting Services

P.O. Box 520

Tenafly, NJ 07670-0520

Tel.: (973) 897-8162

Fax: (973) 810-0440

E-mail: metroforensics@gmail.com

Web pages: https://sites.google.com/site/metropolitanforensics/

We are happy to announce the launch of our twitter account. Please make sure to follow us at @MetropForensics

Metropolitan appreciates your business.

Feel free to recommend our services to your friends and colleagues.

Metropolitan Engineering, Consulting, Forensics, and Environmental Remediation Services. Construction, Investigation, Remediation and Forensic Expert Engineers

Construction Defects, Construction Claims, Engineering, Property & Casualty Investigations, Assessment, Site Investigation, Remediation, Litigation and Indoor-Air Expert Engineers

Bill Stephan, PhD, PE, CIH, CHMM, JD, MBA

Principal Engineer

P.O. Box 520

Tenafly, New Jersey 07670-0520

Phone: (973) 897-8162

Fax: (973) 810-0440

E-mail: metroforensics@gmail.com

______________________________________________________________________

Firm Overview

The engineering and forensic firm of Metropolitan Forensics and Consulting Engineering and Environmental Services was established for the purpose of providing a high value service to the insurance industry and to the insured companies or individuals. Our founding principal (Bill Stephan) is a licensed professional engineer in several states, including, New Jersey, New York, Pennsylvania, and Delaware.

We specialize in the in-situ remediation of petroleum and chlorinated spills, the defense of liability claims, the investigation and defense of first or third party insurance claims and the handling of subrogation claims.  We are also experts on oil and gas energy sector issues (design, investigations, construction oversight), renewable energy sector (wind turbines, solar panels, biofuels, etc), vapor intrusion evaluation, vapor phase and transport and in design on vapor mitigation systems.  Additionally, we offer forensic engineering services, including age-dating of contaminant releases, construction defects, oversight, evaluation of remedial alternatives, sub-slab ventilation system design and installation.  The list of our core services is:

• Cause and Origin Investigations
• Construction Failure Analysis (Residential, Industrial and Commercial)
• Structural Integrity Evaluation
  
• Site Investigation
• Tank removals and tank installations; licensed and insured to perform entire UST work
  
• In-Situ Remediation of Soil and Groundwater
  
• Vapor intrusion, indoor air evaluation and mitigation
  
• Causation
• Forensic Investigations (age-dating)
• Oversight
• Review of Remedial Action Work Plans
• Reserve Estimation
• Cost Allocation
• RAWP Preparation
• Site Remediation
• Cleanup Level Development and Negotiation
• Subrogation
• Expert Witness/Litigation Support
• Licensed Site Remediation Professional (LSRP) Services
• Construction Claims (Delay, Differing Site Conditions, Loss of Productivity, Acceleration, and others)
  

Additional Specialty Service Areas

Age Dating
Boilers & Burners
Bridges
Building Codes
Building Inspections

Construction Accident
   Reconstruction
Construction Defects
Construction Delay Claims
Construction Surety Claims
Construction Disputes
Construction Differing Condition Claims
Construction Oversight
Construction Management
Construction Acceleration Claims

Construction Failures
Construction Injuries
Contractor Performance Issues
Corrosion

Defective Designs
Defective Roadway Design
   Evaluations

Earthquake
Electrical Accidents/Injuries
Electrical Equipment Failures
Electrical Fires
Elevators, Escalators
   & Conveyors
Embedded Software Hazards
   & Analysis
Equipment Failures
Errors and Omissions
Explosions
Failure Analysis
Fire
Fire Codes
Fire Protection Systems
Fire Suppression Systems
Flood Damage Assessment

Foundation Systems

Gas Systems
Hailstorm damage

Heating & Ventilation Systems
Heavy Construction
Highway/Roadway Design
Human Factors

Indoor Air Quality
Laboratory Services
Ladders, Scaffolding Falls
   & Failures
Lightning

Mechanical Defect Evaluations
Metallurgical Age Dating
Mold Causation
Natural Disasters/Weather
   Related Issues
Nuclear Energy
Occupational Hazards
   & Illness
Piping
Playground Equipment Injuries
Plumbing
Product Failures
Roofing Problems & Failures
Safety Codes
Safety & Human Factors
   Engineering
Scalding
Scene Mapping and Photographs
Sick Building Syndrome
Sports Equipment Injuries
Standardized Codes
Steam Systems
Subrogation Issues

Transportation Issues
Trips, Slips & Falls
Underground Storage Tanks
Utilities Expertise
Vibration
Water Damage
Windstorm

Mission Statement

Our mission is to work as an extension of our clients to expeditiously achieve the most economically favorable resolution of claims on their behalf and on behalf of their insured. We have developed and will continue to create new solutions to the technical problems and issues which are facing the insurance industry and the insureds today.  

Metropolitan provides forensic engineering work (age-dating or fingerprinting), site remediation, auditing, cost control and litigation support services to insurance carriers, their insureds and to private or public companies.  In its risk management role, examines, manages and audits environmental claims to ensure that assessment and remediation services provided to both carriers and policy holders are reasonable and necessary, properly rendered and appropriately charged. 

In its litigation support role, Metropolitan assists carriers and their counsel to ensure that litigious disputes are resolved fairly and reimbursement benefits are provided when appropriate.  The corporations service area includes the entire United States, with our corporate office located in Northern New Jersey.  The Firm's professional staff also travels regularly throughout the United States on assignment.

Forensics at Metropolitan

There are many issues associated with disputes over responsibility for cleanup. Who, what, when, where, and how chemicals were released can be investigated. The tools of forensic investigation include mathematical models, statistical models, fate and transport calculations, chromatography, lead isotope analyses, time of travel assessments, library search site characterization, tracer additives, and recently developed software applications.

Effective forensic project management should include an evaluation of multiple forensic tools based on site specific circumstances. The process of evaluation and the ultimate selection of the forensic tool are critical to a successful outcome. When project budgets allow, combining forensic methods for corroborative evidence can substantially strengthen your client’s position in an effort to prevent or support litigation. The effective forensic consultant must be well acquainted with an ever expanding list of analytical methods, environmental regulations, assessment procedures and remedial technologies.

The forensic field is one that utilizes a wide range of scientific tools to identify and characterize complex adverse environmental events. Some of the scientific disciplines involved in forensics include engineering principles (biological, physical and chemical), hydrology, lithology, geology, site history, site practices, mathematics, and statistics. These areas may be combined with technologies such as respiratory analyses, chromatography/mass spectrometry and chemical fingerprinting methods to answer complex questions with the ultimate goal of establishing responsibility for a particular event. Accurate, defensible forensic analyses are an essential component of any strategy that attempts to resolve the extent of the insurer or insured client responsibilities in the cleanup of contaminants.

Contact us online or call 973-897-8162 to learn more about our forensic services.

Property Damage Services at Metropolitan

Metropolitan assists property owners, claims professionals, businesses, and attorneys in   the assessment of the cause & origin (C&O), extent of damage and required restoration after pipe bursts, settlements, manufacturing and construction failures, fire, flood, earthquake, or storm damage.  Our teams of engineers have extensive experience in the many systems that make up a building including structural, mechanical and electrical systems.   We also have the necessary background to evaluate property damage to items such as communications towers or solar panels. We can help determine alternative, appropriate, and cost effective solutions for repair or restoration of any damaged property, both commercial and residential. 

Providing Competent, Expert and Objective Investigative Engineering and Consulting Services.

Our experts are multi-skilled, competent, and objective professionals who apply their analytical and common sense skills to reconstruct, determine the root cause, and document the events that give rise to property, casualty, and liability claims.  Thorough investigations and detailed measurements/research help us distinguish between pre-existing conditions and sudden and accidental losses.

Our investigations are:

·         Comprehensive & Accurate

·         Legible & Easy to Understand

·         Timely Performed

·         Delivered Quickly

·         Cost Effective

·         Clear & Concise

·         Developed by Professionals

·         Dependable

·         Our own uniform reporting system saves time and money.

Our Fast Track Investigation and Uniform Format Reporting systems allow us to conduct and deliver a comprehensive response to the assigned claim.  In most cases, we will obtain findings based on a site visit, visual observations, photographs, interviews, and field measurements.  Further investigations and testing will be provided upon request and approval by the client.

Forensic Investigation of Property Damage Claims

Metropolitan Consulting, Engineering & Forensics understands your need to complete a claim investigation accurately and efficiently as possible.  Whether it is accident reconstruction, damage due to environmental forces such as wind, water, hail, snow, tornado, etc.; fire origin & cause investigation or any other claim, the engineers at Metropolitan understand both you and your client want to resolve the claim.  The analysis you receive from Metropolitan will be accurate and complete, giving you the information needed in the claim adjustment and analysis.

Our services have extended beyond the forensic analysis phase into the remediation and repair phase of many large loss claims.  Upon the completion of the cause and origin (C&O) investigation, Metropolitan can provide our clients with complete working drawings and specifications needed to repair or rebuilt damaged buildings or other structures.  Metropolitan Consulting & Engineering’ staff possesses many-many years of experience in rehabilitation design, construction management, and project oversight to ensure the loss is restored in a timely and cost-effective manner without sacrificing quality.  Building code knowledge allows us to identify possible code upgrades as needed.  Metropolitan understands constructability and realizes making an insured whole goes beyond forensic investigation and design. We pride ourselves in providing practical solutions contractors can understand and follow.

At the forefront of available technology, we provide professionals and staff capable of handling a variety of engineering evaluations.  Our reports are clear, concise, complete and efficiently produced.  Our engineering objectives are achieved in an ethical manner consistent with the traditions and character of engineering professionals.

Contact us online or call 973-897-8162 to learn more about our property damage services.

Extensive Experience helping Sureties

Metropolitan also has extensive experience helping sureties fulfill their bond obligations resolve disputes after a contractor has defaulted.  This work includes the evaluation of contractor bid pricing, evaluation of the contractor’s ability to perform work, risk assessment, evaluation of termination, construction completion services, claim and litigation support services, loss recovery services, evaluation of payment bond claims, negotiation and settlement of payment bond claims, and construction defects investigation services.  Metropolitan has provided these services for commercial, development, educational, and assisted living projects.

Construction is a business fraught with risk.  Disputes over even the smallest of issues can quickly escalate, with crippling consequences to the project and the parties.  Over the years, the construction industry has developed various methods of contractually allocating the risk of project delay and disruption.  Some of these methods include liquidated damages provisions, "no damages for delay" clauses, mutual waivers of consequential damages, provisions that limit liability, claims notice provisions, and provisions addressing responsibility for the adequacy of the construction plans and specifications.  Parties frequently litigate the sufficiency of these risk-shifting efforts in conjunction with the underlying merits of delay and disruption disputes.

Construction Claims & Disputes

The most frequently encountered claims include:

1.            Construction Delay Claims

2.            Disruption and Loss of Labor Productivity Claims

3.            Design and Construction Defect Claims

4.            Force Majeure Claims

5.            Acceleration or Compression of the Schedule Claims

6.            Suspension, Termination and Default Claims

7.            Differing Site Conditions Claims

8.            Change Order and Extra Work Claims

9.            Cost Overrun Claims

10.         Unacceptable Workmanship or Substituted Material Claims

11.         Non-payment Claims (stop notice (or Notice to Withhold) claims, mechanics’ lien (only for private construction projects) and payment bond claims)

Forensic Engineering Experience Case Studies

Metropolitan staff has developed and utilized scientific methods to assist clients in a variety of ways related to their claim issues. The following is a partial list of such projects:

• Provided expert witness services for plaintiff seeking remediation of contaminated groundwater that caused indoor air inhalation problems;
• Testified that engineering and scientific evidence was improperly collected and analyzed and was inadequate to show the age of the release;
• Origin and cause of retaining wall failures.  
• Lightning damage to structures or electrical systems and equipment
• Roof failure or collapse as a result of accumulated load, additional weight and snow drift at hundreds of commercial and residential properties.
• Demonstrated that solvents in groundwater at client's property originated from off-site dry-cleaner and that client's site actually provided remediation for the off-site release of dry cleaning solvent;
• Expert witness for property owner impacted by industrial waste disposal from industrial manufacturer;
• Demonstrated that environmental analysis by a previous consultant for a manufacturing site was inadequate; as a result, the lender's concerns were alleviated and financing proceeded;
• Chemical "age-dating" and contaminant transport analyses of petroleum in groundwater at a gas station showed that contaminants originated from other parties;
• Age-dated petroleum release at a former gas station to show that the previous owner of the gas station caused groundwater contamination;
• Age-dated petroleum releases at an industrial facility to show that the on-site plume was the result of an off-site source;
• Prepared age-dating reports for over one-hundred residential fuel oil spills;
• Assisted insurance companies attorneys in defending subrogation claims; was able to demonstrate that the forensic data collected by the first party consultant were collected and analyzed using invalid methods;
• Demonstrated that structural damage to a residence was from a source other than the alleged high lake level
• Collected evidence (for the primary responsible party) that identified other responsible parties to share in the cost of a Superfund cleanup;
• Review of the site data at a bulk petroleum facility indicated that the site releases were not the result of regular oil transfer operations and that they were caused by the negligent actions of the insured’s agents; the case was settled in favor of the insurance company;
• Was able to demonstrate that the majority of the removal actions at petroleum release sites were neither reasonable nor necessary; as a result of our opinion, the insurance client settled the claim in favorable terms;
• At several drycleaner sites we were able to demonstrate that the age of the release was much earlier than the parties originally believed; as a result, the insurance client settled the claim at a fraction of the alleged liability;
• We performed numerous flood and wind damage assessments at commercial and residential properties.

Contact us online or call 973-897-8162 to learn more about our forensic engineering services.

Site Remediation Services

 Characterizing and remediating contaminated sites involve some of the most complex and difficult issues for environmental lawyers and their clients. Problem areas include responding to regulators; negotiating enforcement settlements; negotiating or litigating cost allocation and recovery claims; working with the insured or insurer client, lawyers and regulators to develop efficient, cost-effective remediation approaches; and selling, buying, or developing contaminated properties.

Metropolitan staff has developed and applied an innovative approach to the use of sodium persulfate for the sequential in-situ treatment of subsurface contaminants through chemical oxidation followed by enhanced biological degradation through sulfate reduction. This approach has broad applicability to a wide range of contaminants, and shows strong cost-saving benefits through reducing the initial volume of chemical oxidant necessary and enhancing the in-situ biological degradation of contaminants.

Through proper subsurface geochemical characterization and chemical dosing design, the approach focuses on utilizing the oxidant for immediate mass reduction at the source area, followed by degradation or polishing of the residual contamination using sulfate reducing bacteria.  Depending upon the oxidant activation method, this approach is applicable to petroleum hydrocarbons including both volatiles and PAHs, chlorinated volatile organic compounds (CVOCs) including chlorinated ethene, ethane and methane groups, as well as PCBs.

Contact us online or call 973-897-8162 to learn more about our Site Remediation Services.

Vapor Intrusion and Indoor-Air Studies

Vapor intrusion has received increased attention over the last few years near contaminated sites because some contaminants have the potential to migrate into nearby buildings and negatively affect indoor air quality. The accumulation of these volatile vapors in buildings can result in significant safety and health concerns.
To properly evaluate vapor intrusion a thorough evaluation of the building's ventilation system and subsurface conditions needs to be conducted by a knowledgeable professional in accordance with state and federal established procedures. 
The evaluation process typically includes a thorough building chemical inventory, the advancement of soil gas probes and the collection of soil gas samples. When indoor air quality problems are identified they can normally be resolved through the modification/installation of a properly designed ventilation system.
Metropolitan is well experienced with U.S. EPA and State vapor intrusion investigation techniques. We have completed numerous vapor intrusion and indoor air quality studies at commercial and residential properties. We have the experience to identify and resolve indoor vapor intrusion problems and the practical know-how to resolve indoor quality issues in an efficient and cost effective manner.
Contact us online or call 973-897-8162 to learn more about our Vapor Intrusion and Indoor Air Studies.

Metropolitan Engineering, Consulting, Forensics, and Environmental Remediation Services

Construction, Investigation, Remediation and Forensic Expert  Engineers

P.O. Box 520

Tenafly, New Jersey 07670-0520

Ph.: (973) 897-8162

Fax: (973) 810-0440

metroforensics@gmail.com

Contact: Dr. Bill N. Stephan, PhD, PE, JD, CIH, MBA, CHMM

Insurance claim examiners, insureds, insurers, insurance adjusters and risk managers use Metropolitan for determining cause, evaluating the extent of damage, determining the age of the release, separating unrelated damage, analyzing loss scopes and managing restoration data, determining costs to repair, restore or replace, and preparing for insurance appraisals.

Attorneys call on Metropolitan for help when preparing for Litigation and Alternative Dispute Resolution such as arbitration and mediation