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Pursuing A Claim
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Should I Pursue a Damage Claim? It has long been recognized that vibration damage can inflict an unreasonable burden on homeowners.[3] You (and your attorney, if one is involved) should not let statements on the Internet, representations by contractors, their employees (including vibration monitoring sub-contractors), their insurers, their sponsors or even those here in the CVDG, decide whether you pursue a claim. Instead, that decision should include, at a minimum, considerations of: You may feel that you can have an attorney send a damage claim letter to the contractor and get a fairly quick settlement payment. That may happen in some instances involving relatively minor damage, but the biases of many of those connected with the construction industry, as well as their personal financial interests (e.g. future insurability and cost thereof), work against that outcome. It is much more likely that you will have to pursue the claim at some length to have any chance at getting even partial reimbursement for your damage. In most situations, your attorney costs are not directly reimbursable by law. If you use an attorney who takes the case on contingency, his share of any recovery, plus his "costs", may take over 50% of the money. Tort claim laws in many U.S. states may limit the amount that you can recover, either by limiting compensatory damages and/or barring punitive damages. Vibration Damage Claims and You Your probability of success in resolving a vibration damage claim favorably, either by settlement or litigation, depends as much upon your attitudes and behavior as it depends on the facts of the damage and your ability to link it to construction operations (see Damage Causation in the CVDG Pro). You may be understandably angry and frustrated at the people that you feel have damaged your home and subjected you to everything that goes with that, through no fault whatsoever on your part. However, you must not allow yourself to make bad decisions motivated mostly by that anger, especially before you are represented by an attorney. Tips about how to handle your interactions with the opposing side are available in the CVDG Professional Edition chapter, Handling A Claim. It
is virtually a given that opponents whose relative strength in negotiations is,
or appears to be, far apart will be unlikely to reach a fair settlement. Since contractors have lawyers, money and considerable experience in dealing with damage claims on their side, a homeowner
must do everything possible to reduce this disparity in perceived, or real, power to
achieve a settlement. The stronger the homeowner appears, in personal
strength, in claim documentation and in detailed knowledge of the scientific and case facts, the better and
more likely a resolution will be prior to a trial.
If you get an attorney, seek counsel from him/her as to how you should interact with others regarding your claim. Generally speaking, you should say only what is absolutely necessary to report damage to the contractor, the project sponsor and their representatives. If you are represented by an attorney, the attorney should handle, or be involved in, all those interactions. Once you are represented, the contractor and its representatives cannot contact you directly, but must do so through your attorney. If they do contact you after you have representation, tell them nothing, beyond giving them contact information for your attorney. Reporting Damage in both the CVDG Pro and the free CVDG e-book, provides much information about preparing and conveying a construction vibration damage claim. The homeowner should have some real knowledge of the contents of the CVDG, preferably the Professional Edition, for any claim in litigation, as this will provide the scientific basis for his arguments, help with documenting the claim, and the information to dispute questionable or outright false conclusions offered on behalf of the contractor. Of course, there are other ways to gain some of that information (e.g. USBM RI 8507 shown at right), but the CVDG is probably the most concentrated source of information about construction-related vibration damage and claims available. The CVDG Professional Edition chapter, Settlement, has detailed information to help the homeowner prepare for settlement talks and mediation. Assemble Your Evidence No matter how you decide to pursue a claim, you will need to support it with as much documentary evidence as you can get. The amount and quality of your supporting evidence will be important factors in determining whether you have to sue to reach a resolution of your claim and your chance of success if you must sue. The documentation will also be very helpful if you have to talk to an attorney. Beyond photographs or video of the damage to your home or structure, you will require as much documentation of the construction itself as you can get, including days worked, equipment used, and duration of job. With smart phones so commonly used these days, there is a chance neighbors may have photos or video of construction, even if you don't. Photos or video of the pre-construction condition of the home or building are also critical, even if recorded for some other purpose, e.g. a recent sale or marketing of the property. If your home has been on the market recently, photos taken by the real estate agent can be very useful in showing the pre-construction condition of your home. Check with your neighbors to see if they have damage attributable to construction; if so, ask them to document their knowledge in writing and to give you a copy. This is only a fraction of the information you may need to make a successful claim; for more help, see Recording Damage in the CVDG, as well as several additional chapters in the CVDG Professional Edition. Reporting Damage in the CVDG PDF e-book editions (the free Homeowners or comprehensive Professional editions) has much information to help you in making a damage report to the contractor and other involved parties. Multiple damage inspections will be one of the first consequences of reporting construction-related damage to a home or building. Inspections allow all the parties with an interest in the claim to view the damage and draw conclusions, scientifically-supportable or not, about the cause of it. Since there are often inspectors from many parties involved (e.g. contractor employees, insurer representatives (adjusters) for both the homeowner and contractor, an adjuster for insurer for any involved government body, and "experts" representing the parties in a damage claim, such inspections will take substantial part of your time over a period of a few weeks after you report damage.[8] The CVDG has an entire chapter devoted to preparing for and conducting these inspections, Damage Inspections, since they usually occur very early in the process of handling a damage claim, when homeowners are least experienced and knowledgeable. Even if your inspections have already occurred, you can find tips there which will help you to understand and evaluate the "findings" of such inspections. Making a Claim Against Your Homeowner's PolicyThe first thing that most people think to do when they have an issue with some kind of damage to their home is to call their homeowner's policy insurer. Of course, anyone who has dealt with an insurance company on any substantial claim knows that principle rarely enters into the company's thinking. Insurance companies make the decision to pay or deny large claims mostly on the monetary issues and their estimate of whether you will be able to fight them or not.Before you report damage or meet with any insurance company, yours or theirs, it's a good idea to know exactly what your policy says. "What you don't know can hurt you" when it comes to insurance coverage, to quote a particularly apt home insurer ad which has run in the U.S. recently. What counts is not those one-of-a-kind, unpredictable losses the insurer may have covered one time in the past, but whether it will cover far more common and foreseeable construction vibration damage under your policy.[5] Policy "perks" can mean "a whole lot of" nothing, if the policy won't cover vibration damage of any form, magnitude or cause.Policy Ground Movement Exclusions Most homeowner's policies will have "earth movement" or similar exclusions. These exclusions were originally intended to eliminate coverage for earthquake damage,[1] but are often s-t--r---e----t-----c------h-------e--------d by insurance companies to exclude vibration damage coverage, pretty much irrespective of the actual exclusion language in the policy. You will want to check your policy for this kind of exclusion before you contact your insurance company or agent. Such uses of ground movement exclusions are seemingly self-serving on the part of the insurance company. They ignore one fundamental fact about vibration damage. Construction vibration, even damaging vibration, usually causes little or no permanent change in the position of the ground or its constituent particles and structures (see Vibration 101 for more). Thus, in most vibration damage cases, there is no evidence whatsoever of permanent "ground movement" of the sort caused by earthquakes (e.g. cracks in the ground) that could provide supporting evidence for use of such an exclusion. Insurers might, in principle, use vibration monitoring data to support such a conclusion, but in most cases of construction vibration damage, monitoring is only started after the damage is reported, in the rare cases where it is done at all. A legal analysis of vibration damage exclusions in insurance policies,[1] indicates that the applicability of general vibration exclusions in construction vibration damage cases depends on both the specificity of the exclusion and the jurisdiction. The majority view is that general earth movement exclusions apply only to natural, not man-made, vibration events, but that view is not universal. Additional legal analysis is available for some older cases.[2] Study the language of your homeowner's policy carefully, perhaps with an attorney, to make sure of what any such exclusion really covers. If it does not mention human-caused vibration damage explicitly, you can fight the use of the exclusion. There are many insurance litigation attorneys in the U.S. who specialize in insurance litigation; one of them may be able to help you understand ground movement exclusions, and, if necessary, fight them. If you need help understanding the language of your policy and its structure, the United Policyholders site (https://uphelp.org) has many valuable documents, including a FAQ, that answers many of the most common questions. If your policy includes a specific and broad vibration or earth movement exclusion, find a new insurer. A broad vibration exclusion can make the policy essentially worthless. All houses experience slight vibration at some base level from passing traffic, occasional sonic booms, or even the movement of people within the home; such an exclusion might be used to deny coverage for virtually all forms and causes of damage, possibly excepting a fire, with little or no supporting evidence. Some insurance companies in some locales will sell you a policy endorsement that covers earth movement damage explicitly for an additional fee. Such endorsements are not always useful. Of course, you must also have some reason, in advance of any damage, to pay extra for such coverage. For more on such policy endorsements, see Pre-Construction. Insurance Experience with Vibration Damage in One Project We are personally aware of two examples in a road reconstruction project where the insurance companies involved denied construction vibration damage claims, based on "earth movement" exclusions. There was no objective evidence of actual earth movement (e.g. cracking of soil), nor did the adjusters seek evidence of that sort, nor were the adjusters qualified scientifically, in any sense, to make such judgments. One of those companies completely rewrote its policy at the next renewal to include so many vibration and movement exclusions that the policy, in effect, insured against virtually nothing, save, perhaps, fire. That same company also denied coverage under a second, "umbrella" policy. A third home insurer in that vibration damage incident paid the claim for vibration damage involving water damage due to a pipe rupture in a third home, very likely vibration-related. They dropped the homeowner as an insured. Two other homes around the same intersection also had water damage claims, in addition to clear and extensive vibration damage throughout the homes, which were paid by insurance,[4]. Your insurance company may well cancel your coverage, even if they don't pay your damage claim. The mere fact of your having made a claim, whether or not it is paid, also means that most other insurers will not insure your home for at least a period of years. It doesn't make any difference whether you have ever filed a claim of any sort or amount prior to your vibration damage claim. Worse yet, the shared claims databases used by insurers often carry incorrect or duplicate information about claims. In our experience, it is virtually impossible to get errors in the databases corrected, short of suing the insurance company. Thus, you may get a "quadruple whammy" - the damage done to your home, the cost of repairing it yourself, being forced by your insurance company to take responsibility for someone else's irresponsible actions, and having to fight to correct errors in the claims databases shared by most insurers. While the examples given here relate to the construction vibration damage example with which I'm most familiar, many others from different states in the U.S. have written me with similar stories of their own coverage denials.[7] If you can get your insurance company to cover your construction-related vibration damage, it will be faster and easier to handle it that way, but that's a big "if". Dealing With Your Insurance Company You may know your own insurance agent well, but, in the end, he works for the insurance company, not for you. You should call the local representative only after you have reviewed the policy provisions. Even then, you should be careful in what you tell the insurance agent or any representative of the insurer, especially with respect to what you think the cause of the damage might be. It takes scientific knowledge and considerable documentation to support adequately a valid vibration damage claim (or, for that matter, for the insurance company to defend a coverage denial under an "earth movement" exclusion in the policy). You will probably not have complete information assembled when you first talk to your insurer after the damage occurs, even if you provide it at some later time. It is probably wisest for you to offer no suggestions to the insurance company representatives regarding what you believe may have caused the damage, either on the phone or when they visit your home to inspect the damage. This approach allows you to be completely truthful and open about the damage, without unintentionally biasing the insurance company's judgment in any direction. You may believe strongly that construction was responsible for the damage. But, your belief is not proof, nor are you obligated to share that, as yet, unproven, belief with the insurance company. Most large construction jobs are insured, both by practice and by contract requirement. The contractor likely will refer you to their insurance company for your damage claim. Thus, the insurance company for the contractor will handle the claim.[5] However, you will almost certainly be denied if your damage is significant. Then, the negotiation process will start. Your weapons are your damage, documentation and determination. If you are substantially lacking in any of these, you will probably have little success. Construction insurers cannot raise "ground movement" exclusions, so their response to claims must involve some sort of "expert" opinion, almost always invoking "pre-existing damage", as the "explanation" for the damage. Construction insurers are not accustomed to paying any large claims and will fight doing so in your case, if you have more than minimal damage. Be honest with the insurer and those people it sends to inspect the damage, but don't assume that they are on your side or care anything about the problem, perhaps caused by their company's insured. Remember, they work for the contractor and insurer, not for you. The contractor insurer's representatives will only help you if they believe that is the cheapest course of action for the insurer. In talking with the contractor's insurer, keep in mind that damage can take a year or more to fully reveal itself. An early settlement, based on the visible damage at that time, may leave you with a big repair bill later.[7] If you cannot get the contractor or insurance (yours or theirs) to pay the repair cost, amounts less than $10,000 are probably best addressed by proceeding with fixing the damage yourself and getting on with enjoying your life. Pursuing a claim can take years, hundreds of thousands of dollars, and immense amounts of your time, if you have to litigate. There is no guarantee that you will win at trial, or even be allowed to present all your relevant evidence, no matter how strong your case or skilled your attorney might be. If you choose to pay for the damage yourself, you should still inform the contractor of the damage (see Reporting Damage in the CVDG PDF and Pro versions) verbally immediately and in writing as soon as possible thereafter. Taking such an action may help avoid limited damage turning into a lot of damage, whose repair you might not be able to finance. Of course, you will be doing all your neighbors a favor too, by helping to prevent (additional) damage to their homes, assuming that the contractor is willing to listen to you and act accordingly. Amicable ResolutionOnce you have notified the responsible parties of the damage (see Reporting Damage in the CVDG PDF versions) in as timely a manner as possible, your next course of action should be to attempt a resolution directly with the contractor and/or its sponsor for the work. This is one reason why you need to notify the contractor as soon as you detect damage and can make a reasoned and supported argument that it is construction-related. You should be open about the damage and allow inspection of it by any party with a legitimate connection to the contractor or sponsor. It may be wise to set some ground rules in advance for those inspections (see the Conditions Documents page in the CVDG Pro). It is not in your interest either to maximize or minimize the extent of the damage. Many houses and properties have a few hairline cracks or other slight damage existing before the construction start. Where those exist, admit them freely. Your goal is to arrive at a fair settlement (see CVDG Pro's Settlement) which allows you to repair damage traceable to construction and stop further damage, not to create irrelevant arguments and defenses where none need exist. Avoid threatening lawsuit, unless you are willing to carry through on the threat in a meaningful way. Threats will likely cause the contractor and insurer to involve their own attorney and will cause you to lose the moral "high ground". Once that happens, the chances of resolution without legal action decrease; your costs and time requirements will go up accordingly. Instead, make reasonable requests that accurately reflect the nature of your damage and its repair cost. It will be at least as expensive and time-consuming for the contractor or its insurance company to litigate the claim as it will be for you, so both parties have an interest in avoiding litigation (see below). Administrative Courts Many states use administrative courts to resolve claims against state agencies, much like the similar kind of courts used by the Federal government to resolve disputes on Social Security disability eligibility. If your claim involves damages done by a state agency in the performance of its work, you may want, or be forced, to file a claim in an administrative court, rather than in state or Federal court. You should be represented by an attorney in any action brought before such a court. Although you should consult an attorney for more information on this topic, keep in mind that work done by a contractor for the state or a municipality is usually not subject to action in the administrative courts. In those cases, you will have to seek damages from the contractor in a civil case. Administrative courts work much like regular courts. The administrative judge, an employee of the agency or of the state, hears the case and makes the decision; there is no jury. You offer your evidence in much the same way. Judges in such courts are more educated than the average juror, so your case can be presented on a somewhat higher technical level, with less educational material, than might be appropriate for the typical non-technically-trained jury. Cases in administrative courts are usually allocated much less time than would be allocated in a civil case, so conciseness and focus in presenting your case are critical. Newspaper and TV station investigations can bring a great deal of public pressure on contractors and government agencies, since some of those involved in construction projects prefer that their activities and treatment of homeowners remain out of the public spotlight. The media can be particularly powerful when they report the story while the construction is still occurring, as they can often show both the construction work and the vibrations caused by it in the home. Sometimes, media reporting can help you arrive at a settlement without the need for a lawsuit, if the story is sufficiently graphic to be effectively indisputable. Like most other powerful tools, media publicity can be a "two-edged sword". While media exposure can sometimes force action from reluctant contractors and project sponsors, it can also cause them to become entrenched in their positions, especially in cases where the damage and its source are hard to argue. If you use the media to bring some light on your plight, reporters will probably talk to your neighbors to determine if others have damage. Those neighbors, even if they have damage of their own, may dispute everything you say as a means of protecting their own property values. Anything you say publicly could be used against you, if you are forced to file suit over the damage. Certainly, you will be making much information about your potential claim available to the opposing parties. I'm not a "media consultant". However, anyone who has dealt with the media multiple times, as I have in discussing scientific and technical discoveries, will tell you to be well-prepared, careful, measured, concise and absolutely clear in your comments. Any off-hand, "off-the-record", angry or trivial comments you make will be the ones that are reported. The media can't be entirely faulted for this; such comments make the best, if often trivialized, copy. If you decide that the news media might be helpful to you:
I have seen construction vibration damage claims displayed very effectively in the news media by homeowners. The best such examples are the ones where the homeowner is open and forthright, but controlled and calm in what he says. Don't contact the media unless you're reasonably sure you can make it work to your advantage. Don't contact them until you are ready to have the story told properly. Only bring in the media after you have made a good faith effort to address the matter with the contractor and sponsor. You may have to make an exception to that rule if damage is ongoing in a current project. In that event, be certain that you can display your case effectively with construction occurring. Make sure you document every occasion on which you attempt to arrive at an understanding with the contractor and sponsor, as you will probably be asked if and when you've tried to reach a resolution or a change in construction procedures. Litigation is your last option, if you cannot come to a fair understanding with the contractor or their insurer - especially if you have a lot of damage. Litigation should not be undertaken lightly or in the absence of a good deal of supporting evidence. Project contractors are sued with some frequency; they and their insurers usually have experienced legal teams in place. So, a quick settlement after a lawsuit threat from your attorney is unlikely. A decision to litigate involves a lot of prior consideration, as discussed early in this chapter. Even in a case with overwhelming evidence (e.g. figurative "smoking guns") against the contractor, uncertainties regarding the jury pool composition, judge rulings prior to trial about what evidence can appear in the trial, and even scheduling issues (e.g. amount of time the judge will allot for the trial) can all work to put the outcome in doubt. Of course, the contractor faces the same issues, at least to some degree. Because contractors are often sued, the judge may already be familiar with the usual defense view that "construction can't cause damage or that all damage is "pre-existing". You may have to combat that bias in prosecuting your case. It's About the Money Despite a desire for "justice", anyone experienced in civil litigation will tell you that, in the end, it's all about the money. Financial considerations will determine the actions of everyone involved. That means that you will have to balance the cost of legal action against its likelihood of an jury award or monetary settlement. Some states place limitations on the amount you can recover in a vibration damage case. You usually cannot recover your attorney costs as part of compensatory damages. Expect the contractor to drag the case out for as long as he can, in hope that you will run out of resources to carry the case to trial. You may be forced into litigation, but it's not something you should want to happen, no matter how much you might like to "get justice". Anyone in the U.S. who watches television can't help but see numerous ads for attorney services. They give the impression that all you have to do to get money is call the attorney and tell him about your problem. While the ads might be correctly describing the fee arrangements for attorneys involved in mass torts (e.g. various medical devices, drugs), they are probably not representative of vibration damage litigation. Even if you can find a knowledgeable vibration damage attorney who will take your case on a contingency basis ("pay nothing until you win"), you will still have to pay the attorney's "costs" (expert fees, transcription fees, court costs and more) under the contingency agreements. Plaintiffs in contingency cases often find that the attorneys fees and costs will take more than half of any award or settlement. Choosing an Attorney If the contractor or its insurer retains an attorney or asks an attorney to write you a letter discounting your legitimate claims or even threatening you, you are well-advised to begin conversations with an attorney (see below and Involving an Attorney in the CVDG Pro) of your own choosing, even though you may not retain that attorney immediately. You may want to retain an attorney before it becomes clear that you will have to litigate a damage claim. The attorney can force production of relevant documents and data from the contractor, which you might not be able to get otherwise. He should also start the process of identifying real experts to examine your claim. Do not talk with or write any opposing attorney and do not participate in any meetings or conversations with that attorney, unless you are also represented by your own attorney. Clear, in advance, what you will say with your attorney. See the CVDG Pro page, Involving An Attorney, for much more information on choosing and using an attorney to represent your interests. If you have to retain an attorney, either to litigate or just to get fair treatment from the construction insurer, it's best to keep a few things in mind. Fighting instinct in an attorney might be good in some circumstances, but may not be so constructive in finding a fair settlement or getting a case to trial "quickly". Choose an attorney who is smart, willing to learn, has a good reputation in your community for honesty and integrity, and believes in you and your case. Such an attorney will fight for you, but will not turn every issue into an unnecessary clash. Experience in vibration damage cases is a big plus, but is not absolutely necessary, so long as the attorney is open to, and recognizes the necessity of, learning some of the science of vibration effects. Such knowledge will be absolutely necessary during the discovery phase of the litigation. Potential conflicts of interest are common, especially in smaller cities and towns, since a qualified attorney may have worked with or know some or all of the people on the other side. Be sure to inquire about any possible interest conflicts. Remember always that you will not be the only client of the attorney. Your damage case is very important to you, but it's only one of many, in many different areas, on which your attorney will be working. Cases move slowly (months to years) through the judicial system - even those that settle. You will be paying for the attorney's time no matter what the fee arrangement, so keep your communications as concise and focused on your case as you can. Only contact the attorney when you have important information to impart regarding your case. Use email for most contacts and transfers of documents; call only when immediate feedback from the attorney is necessary. A little time spent organizing your thoughts and information can save you some serious money. Working with an Attorney in the CVDG Pro has many tips to help you maximize the effectiveness of your communications with your attorney, while minimizing their cost. There are some few attorneys who, to put it generously, like to work with very limited client input; others may have obvious ego issues which interfere with effective interaction with the client. Avoid such attorneys, as they can make the long-term relationship you will have with them much more difficult and hurt the presentation of your case. No attorney, no matter how knowledgeable, experienced or well-intentioned, can pursue a vibration damage case without considerable interaction, help and input from the client.[6] He, and you, will also need the nearly immediate help of a vibration damage expert to document and understand your damage as near as possible to the time of its creation as you can get. The CVDG Pro has much more information to help you with, and save you considerable money in, the expensive proposition of retaining and working with an attorney in a vibration damage claim. Contractors and Vibration Damage Litigation Just as the homeowner should take reasonable steps to avoid litigation for many good financial and personal reasons, contractors and insurers have at least as much motivation to avoid litigating as do homeowners. They face the same uncertainties in litigation as homeowners. Litigating a case to verdict can easily cost $250,000 or more for the contractor and/or his insurer, especially if multiple plaintiffs and defendants are involved, as is typical. Few individual damage cases involve more money for repair costs than the litigation costs. Whether or not the contractor prevails in court, his insurance costs will likely increase dramatically. Questions will be raised in future jobs about the record of the contractor. Since most court records are available online now, there is a high likelihood that the records of previous actions against a contractor will be found by anyone who takes the time to search for them. Researching a Claim in the CVDG Pro has many tips about how and for what to search. The pre-litigation process itself (e.g. home inspections, discussions between neighbors, interviewing witnesses) is certain to alert others in the neighborhood of the plaintiff of the damage problem. They might not otherwise have realized the potential for damage to their own homes, if those activities had not drawn attention to it. These litigation-related dealings can have the effect of bringing forth a flurry of suits, which can interact synergistically to the disadvantage of the contractor. Of course, the contractor will have manpower tied up producing documents, attending meetings, and preparing for and appearing in depositions and trial - another cost to the contractor. If the homeowner has a well-documented case, the contractor is likely to have a representative of his insurer present during discovery and trial. Nothing can be more damaging to contractor insurability than having the insurer see in court that the contractor almost certainly did the damage, or, worse yet, is clearly lying about it under oath. Risks of Litigation While there are some vibration damage cases that are ultimately litigated, it isn't something for which either the homeowner or the contractor should strive. The homeowner is risking a great deal of time and money; the contractor may be putting his business on the line! For much more guidance on choosing an attorney and navigating the litigation process in vibration damage cases, take a look at the chapters, Involving an Attorney and Litigating, among many other litigation-related sections, in the CVDG Pro.
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E-mail to drzeigler@vibrationdamage.com or send online questions or comments about Vibrationdamage.com.
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How you pursue a legitimate vibration damage claim can be among the most important decisions
you will make regarding it. Just about any fair resolution outside the legal
system will be cheaper and faster than filing suit. Legal action should
be your last resort, as it is expensive, time-consuming, frustrating, chancy, and slow to deliver any results. Nonetheless, if your damage claims are
large (e.g. over $100,000), you may be forced to file suit. Below we will discuss some of your options in dealing with
a construction vibration damage claim. 
