Recovery Opportunities Against Water Restoration Contractors For Deviations From Industry Good Practices & Standards Of Care
April, 2007
by Dean S. Rauchwerger and Michael S. Errera and Allison K. Ferrini and John F. O'Brien III
Entry of errant water into a building or other structure can lead to serious mold problems, physical damage, and substantial property and business interruption losses. This article provides a roadmap for developing viable recovery claims against restorative drying contractors involved in improper and careless restoration and remediation of water-damaged property.
I. Industry Good Practices & Standards of Care
The water restoration industry’s good practices and standards of care for safe and effective removal of water are reflected in many sources, one of which is published by the Institute of Inspection, Cleaning, and Restoration Certification (“IICRC”). The IICRC is a non-profit organization, certifying firms specializing in restorative drying and water damage restoration. The IICRC’s Standard and Reference Guide for Professional Water Damage Restoration was first published in 1994 and its Third Edition, ANSI-approved, was issued in May 2006. Other resources exist for identifying the applicable industry good practices and standards of care.
Six Critical Steps for Water Damage Restoration
To adequately perform appropriate water restoration, the contractor must meet the following six criteria: 1) evaluate and assess the water damage; 2) determine the type of “water” involved; 3) determine appropriate drying method; 4) inspect and remove water; 5) monitor restoration; and 6) inspect and complete restoration.
1) Evaluating & Assessing the Water Damage
Prior to implementing restoration, the recovery target contractor is expected to have collected relevant information about the nature and extent of the water damage. To gather this information, the contractor should have conducted interviews with pertinent witnesses, inspected the water damaged structure, and taken pertinent objective measurements of the physical structure and contents.
2) Determining the Type of “Water” Involved
After an initial assessment, a water restoration contractor should have determined the type of “water” involved. This identification provides key information on the dangers posed by the water as to its source and makeup and leads to the appropriate restoration procedures required. There are three categories of “water”:
Category One, or “clean water”: evidenced by broken water supply lines, rain or snow melt, or overflow of supply water lines, without contamination, from tubs, sinks, and certain appliances. Although “clean water” by itself is not contaminated, it can degrade over time as it interacts with other materials, such as floors, walls, and carpets and contaminants contained within those materials.
Category Two, or “gray water”: heavily contaminated water that can cause human sickness if consumed or if prolonged exposure occurs. Generally found from water discharged from appliances like a dishwasher, sump pump, and toilet bowls. The potency dangers posed by microorganisms in “gray water” increase when left standing more than 48 hours after discharge.
Category Three, or “black water”: contains pathogens and is unsanitary and harmful. This type of water is typically from seawater or river flooding and sewage.
3) Determining the Appropriate Drying Method
Four drying principles exist: 1) removal of excess standing water through vacuum extraction, mops or other specialized equipment; 2) evaporation of remaining water through use of fans; 3) dehumidification of the affected areas to ensure secondary damage, such as promotion of mold growth, is eliminated; and 4) temperature control for optimized drying conditions.
4) Inspecting & Removing Water
After removal of standing water, the contractor should have inspected and removed any remaining water contained in the structure, such as in basements, crawl spaces, heating and air conditioning systems, ceilings, walls, and in contents. The contractor should have identified the contents and structural components that contain elevated moisture content and determined whether those components can be successfully dried or must be discarded.
5) Monitoring Restoration
During the course of restoration, the contractor should have continually monitored the progress of the drying process.
6) Inspecting & Completing Restoration
During this final phase, the contractor should have ensured that the predetermined drying goals were met and that structural components and contents were returned to a pre-loss moisture condition.
II. Evaluating Your Recovery Target Contractor’s Work
Below is a practical checklist for evaluating whether the target contractor deviated from industry good practices and standards of care:
- Did the contractor fail to respond rapidly and begin restoration immediately?
- Did the contractor fail to adequately identify the source of the water?
- Did the contractor fail to adequately document the scope of the water damage and the appropriate restoration plan?
- Did the contractor fail to ensure that all excess water was collected and removed?
- Did the contractor fail to use adequately trained and qualified restoration technicians?
- Did the contractor fail to inspect all structural components and contents to identify all residual water or secondary water damage?
- Did the contractor fail to use proper containment methods to keep damage from spreading to non-affected areas?
- Did the contractor fail to meet the pre-determined drying goals?
- Did the contractor fail to give adequate warnings regarding health, safety, and drying issues, including possible mold growth?
- Did the contractor fail to completely dry out the structural components and contents to avoid contamination and degradation?
- Did the contractor fail to identify and document pre-existing mold growth or contamination and modify the restoration plan accordingly?
- Did the contractor fail to use the appropriate number and sized drying equipment?
- Did the contractor fail to properly monitor and document the surface and air conditions?
The recovery potential against restorative drying contractors for careless, inadequate, and shoddy workmanship, under tort and/or contract principles, is sizeable. Developing the recovery opportunity requires attention to the foregoing factual elements.
III. The Bottom Line
Where mold exists in the wake of water damage, there is a recovery potential against the restorative drying contractor if your counsel is mindful of the liability trigger points and able to garner the necessary factual and technical evidence to establish liability, whether contractual or tortious in nature. Depending upon the loss, the scope of property and business interruption damages, as well as other losses, may be quite large. Accordingly, you will want to ensure that you have assembled the right litigation team, including industry experts, to prosecute your recovery claims. Should you have any questions, please do not hesitate to contact any of the authors. If you are interested in a client educational seminar, please contact CM partner Dean Rauchwerger (drauchwerger@clausen.com).
Back to CM Report of Recent Decisions (2007v1) 2007 Volume 1 Table of Contents
