Asbestos was used extensively prior to 1978 for residential duct wrapping, flooring veneers, insulation, roofing, and a variety of other veneer and structural materials-both as an additive and in its pure form. The hazards of contamination from this usage come into play when that material is damaged by water contact, removal, amendment or other distress. Damaged asbestos becomes friable and allows for deterioration, which, over an extended period of time, can cause great harm to a structure's tenants.
Health risks due to asbestos contamination are well documented by government authorities, who have for years upgraded requirements in both asbestos manufacture and its use as a building material in an attempt to lessen the problem. Now homeowners, as well as school and commercial tenants are being affected by asbestos contamination or the often erroneous suggestion of that condition.
In California, for example, contractors were informed early last year by way of mandatory state testing and official notice that they had a new obligation under their licensing to inquire of property owners with whom they were contracting as to the owners' knowledge of asbestos presence in their structures. Since then, a bevy of new claims have been presented by owners against remodeling and other contractors, as well as against real estate brokers and sellers of property who are perhaps not familiar with new compliance and disclosure regulations or who in some cases are deliberately attempting to perform work without regard to requirements and good practice within the industry.
Due to recent changes in building code and California State Environmental Health Regulations, all contractors are now required by law to determine the extent of asbestos presence in structures and arrange for testing asbestos content in various construction materials, prior to performing work on properties. Recent legislation and compliance provisions, such as California AB 2040 and SB 2572 and that state's General Industry Safety Order 6208, demand that testing and/or removal be performed by a specialty contractor licensed by the state.
In a recent, now settled litigation, a homeowner blamed asbestos for her miscarriage and the contamination of the interiors of her residence, causing her pain and suffering and requiring her to vacate her house. She claimed the conditions were caused by a remodeling contractor who tore out certain roofing and attic areas in the course of his work without complying with current testing and action requirements, as well as by the failure of her real estate broker and home inspector to locate and disclose asbestos presence. Five insurance carriers and their counsel, as well as the homeowner and her experts, spent two and a half years arguing the dispute.
The American Arbitration Association's role in the resolution of this type of dispute will increase as more property owners become aware of potential health risks in their homes and workplaces. To avoid such disputes, general contractors, remodelers, real estate brokers and residential property inspectors must be aware of their responsibilities and inform themselves and their employees of the extensive performance requirements now demanded under the new laws.
Meanwhile, a program of education, documentation, and good performance is the best protection against future claims against the construction industry.
Julius J. Kummerman, President of California Construction Forensics, Inc., is a licensed General Contractor, Board Certified Forensic Examiner, mediator, arbitrator, lecturer and author of over 2000 reports and articles. He is qualified as an expert in Superior and Federal Courts. Mr. Kummerman can be reached by phone at (818) 908-9966.
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