Co-Authored by Antonios Vytiniotis and Robert T. Johnson
In urban environments, heavy construction is conducted in close proximity to neighboring buildings and other structures. In such environments, construction-induced vibrations are one of the most commonly claimed causes of adjacent building damage. Furthermore, construction vibrations may trigger an injunction for further work, placing substantial burden on a contractor to change its means and methods mid-work.
These vibrations are generated by various types of equipment and
activities ranging from pavement breakers to pile driving. Such
activities can generate short term vibrations or contribute to
longer periods of increased vibration levels.
Construction vibrations may be a nuisance to residents, but they
also can sometimes contribute to property damage. Property owners
experiencing construction-induced vibrations may file claims for
nuisance or cosmetic/architectural and structural damages. Since
the vibration threshold for nuisance is typically lower than the
threshold to cause any damage, property owners may express concerns
about vibrations that are not substantial enough to damage their
property. In the COVID-19 era, more residents stay at, and work
from, home, giving rise to increased construction-induced vibration
claims.
Construction activities cause vibrations of various amplitudes and frequencies that propagate within the subsoils. Ground vibrations may be of sufficient magnitude to cause direct damage to structures. The magnitude of vibrations that causes damage varies with the type and the vibration response of the structure. Vibrations can also cause damage indirectly because they can cause densification of loose soils, resulting in differential settlement of building foundations.
Two important measures of vibrations are the peak particle velocity (PPV), and their predominant frequency. Generally, human perception of vibration is frequency dependent: The greater the frequency, the more perceptible a vibration with the same PPV. Potential for structural damage is also frequency dependent, but the greater the frequency, the less likely a vibration with the same PPV is to cause damage for a regular building. People begin to perceive vibrations at about 0.01 inch per second (ips), a level of excitation which is orders of magnitude less than what can cause cosmetic damages to buildings.
Human perception is also affected by the length of the exposure
(see "Structure Response and Damage Produced by Ground
Vibration From Surface Mine Blasing," Siskind et al., 1980).
For example, at 0.5 ips, vibrations change from "distinctly
perceptible" to "strongly perceptible" as exposure
time extends from one to 10 seconds.
Fortunately, many of the effects of vibrations can be mitigated so
that existing buildings are not adversely affected. If damage is
claimed from construction, the above mechanisms can be investigated
to demonstrate cause-and-effect. Adjustments can also become even
more complex depending on the claim submission by a first party or
additional insured, or a third party. It is imperative to know
details for the policies of all parties.
First Party Claims
As a very important step in adjusting a claim, the alleged damage should be carefully identified. The adjuster should identify the specific cause of vibrations (e.g., blasting, pile driving, excavation, truck traffic) and the asserted causal relationship. All documentation relating to the construction activities that could have caused or contributed to the damages should be requested. Such documentation may include permit applications, drawings, specifications, subcontracts, construction photographs, and any daily vibration records.
It should be examined whether the policy of the claim is based on "all risk" perils, subject to exclusion and limitations, terms, and conditions versus a "named peril" policy. For the latter policy, definitions of relevant terms such as earth movement, negligence and knowledge of concurrent causation are salient.
The conditions at the loss location at the time of the loss should be determined as best as possible. Various data exist such as pre-construction surveys, photographs, videos, and the insured's statement of conditions. It is possible that photos and comments of pre-existing damages and conditions were also included in the insurance application. If the new conditions differ from the original conditions, it should be evaluated whether the pre-existing conditions were exacerbated or whether they constitute completely new damage.
The communications between the various parties are important. Did adjacent owners, or contractors working their projects pre-loss, advise of the impending construction and potential damage to the loss location? If so, what was discussed with the property owner? What allowances and precautions were undertaken pre-loss? Did the policyholder enter into any agreements with the owner or contractor relating to protecting the insured property, monitoring movement, or providing access?
Did the insured provide documentation or "notice" to the contractor and/or adjacent owner of vibrations, potential damage, and a plan to respond to the same? After notice of the damages, did the contractor and/or adjacent owner make any comments? If so, what were they?
Clearly, a property closer to the source of vibrations will typically have a higher chance of being affected by them. One should identify the location of the property and proximity to construction. Whether it is a building in Manhattan or in the suburbs may also dictate the progression of investigation and valuation. Another factor is the type of insured: commercial or residential, multi-family or single-family dwelling.
If the loss is discovered during construction operations, consider installation of monitors for noise, vibrations, cracks, and/or movement. If the loss is discovered post construction, when exactly was that in relation to the policy period, and was the same insurer(s) on the risk or was there a change in carriers?
As the investigation is ongoing, there may be situations where an adjuster would need to consider the use of experts-architects, engineers, building consultants, or counsel, for example. During that time, a reservation of rights may be in order.
Third Party Claims
In third party claims, one should identify all involved
contractors and their function. What were the contractors
performing during the discovery of damages, and who had boots on
the site at the time?
Sometimes, a condition observed can be caused by more than one
party. One should investigate the potential for multiple parties to
contribute to the claimed loss.
Is the third party policy based on an occurrence, or is it a "claims made" policy? Should all carriers for the general contractors over a period of time be noticed (especially with long ongoing projects as carriers may have changed)?
Some additional considerations would be to obtain all contracts between owner, architect, structural engineer, geotechnical engineer, general contractor, and subcontractors; to obtain certificates of insurance and policies (if possible) for parties primarily responsible for the event; and to examine any site- and project-specific intervening events.
Putting It all Together
Construction vibration claims are commonly associated with construction activities, either due to nuisance or to architectural and structural damage. Claimed damages can be small, such as cracks to the exterior of the adjacent building and shifting of doors/windows; or much larger, such as building settlement or collapse.
Therefore, the legal obligations involved in large construction projects can be extensive, and it is important to take action to prevent liability for damages. Depending on the claim submission-by a first party, additional insured, or a third party-the claim adjustment may be quite complex. In these cases, knowledge of all policies, all contracts, and all certificates of insurance of the parties involved is paramount. Communications advising about potential damage pre-loss are also critical.
In order to mitigate the effects of vibrations in a construction project, and also to reduce annoyance to adjacent owners, a few steps can be taken that involve abating vibration and noise, educating the various parties, keeping the parties involved in the construction process, and staying proactive to manage vibrations and misinformation.
One of the most important steps is to actively monitor the vibration and noise levels of a construction project so the construction activities can be managed to keep these levels below project limits. The hard data gathered from this step, together with the data gathered in steps outlined throughout this article, can help demonstrate that the work performed is below harmful levels, and can help identify how and when to adjust the work processes to correct any problems if measurements exceed thresholds.
When insurance claims arise, a detailed technical investigation of such claims is needed. In those cases, good documentation of the conditions after the claim and before the claim can assist significantly in final claim adjustment.
Originally published by CLM Magazine 30 November 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
