Contractors in the propeprty restoration industry will often come across hazardous materials, two of which are asbestos and mold. Episode 83 of the DYOJO Podcast discusses these key items of concern as well as the precautions that should accompany for proper testing and removal. Listening to this episode will inform owners, managers, and restoration professionals on why they need to know if asbestos or mold is being dealt with. This article will review how the intentional restorer should structure their mindset and habits for success when dealing with mold and asbestos in construction materials.
Mold and Asbestos in Construction Materials
There exists a dangerous mindest that asbestos containing materials (ACM) are a thing of the past, the reality is that they are still found in current construction and building materials. These materials can be hazardous to people’s health, including workers, occupants, and anyone who comes in contact with the structure. Asbestos is a legally regulated material. The restoration contractor MUST be mindful of what materials they are dealing with before any kind of demolition is performed. Asbestos becomes troublesome when it becomes friable (aka airborne) when stirring up dust while making flood cuts or removing other materials. Air movement over an area of drywall that has microbial growth on it, in an attempt to dry it, can spread mold spores throughout the home and potentially spread mold to previously unaffected areas.
Mold and Asbestos at the Worksite
Due to the particulate matter of asbestos and mold, their protocols are similar. The contractor will need to make sure they are in compliance with regulations and standards. Each state is unique in how they handle asbestos, so each contractor will need to be mindful of the rules in the state (or states) they work in. Asbestos is regulated by law - there is no straying from the regulations without consequences, which could include steep fines and imprisonment. The contractor will want to be mindful of these so proper protection of their workers will be provided (respirators for technicians, properly sized via fit testing by a certified fit tester, etc.)
Mold and Asbestos Removal Best Practices
The Institute of Inspection Cleaning and Restoration Certification (IICRC) has published ANSI standards for water damage mitigation and mold remediation. These property restoration standards are voluntary compared to those that are regulated for asbestos and other hazardous materials. The IICRC S520 is what outlines consensus standards for professional mold remediation. Owners, managers, and professionals who seek best practices will find these standards and training to be essential to their operations. The IICRC standards are a solid starting point, but restoration and remediation contractors may have to deviate when appropriate. Whether a project is typical or non-standards, the job is only as good as it is documented, and deviations should follow a clearly executed plan.
Contractors should be careful not make any health claims when it comes to mold or asbestos. The job of the contractor is to successfully remediate the mold or abate the asbestos in the structure. Doctors are the ones that should discuss the health concerns of the homeowner, and the contractor should direct any health concerns to those qualified professionals. Intentional restoration contractors and their team members place a high priority on educating themselves on the scopes of work that they plan to perform so that they can keep their clients and their team members safe. Owners, managers, and contractors will do well to keep themselves out of needless legal trouble through studying and executing industry best practices.
This article was written by Tiffany Acuff. Through a chance meeting of a friend, I was brought into the restoration industry. I have seen just about every aspect of working for a restoration contractor. I love this industry because it allows me to make a difficult situation a little bit better. I am constantly on the lookout for ways to contribute to the restoration industry as a whole so that we don't stay stagnant and continue to be leaders of mitigation and preservation. Tiffany has assisted in editing the last three books from The DYOJO, including the latest one, How To Suck Less At Estimating.
It is possible, as an entrepreneur, a business owner, a manager, or an aspiring professional to do the wrong thing for the right reasons. Your intentions do not nullify the potential consequences of your decisions. Therefore, as a means of helping you shorten your DANG learning curve, we have solicited the aid of our good friend Ed Cross, The Restoration Lawyer, to clarify the role of industry standards in your service contracts.
Imagine I am a well-intentioned water damage restoration contractor. I think it would be a good idea to cite the Institute of Inspection Cleaning and Restoration Certification (IICRC) S500 Standard for Professional Water Damage Restoration in my proposals and contracts. With his many years of litigation experience, how would Uncle Ed advise me to navigate this concept?
Restoration Contractor (RC): Hey Ed, I just want people to know that I'm serious about what I do. So I've been talking to them a lot about how we train and follow the IICRC standards.
Ed Cross (Uncle Ed): Comply with the standard of care.
RC: That's why I thought thanks for confirming that. I'm thinking about putting it in our proposals and in our contracts.
Uncle Ed: Don't put that in your contract!
RC: But I want people to know that we're serious and that we do it right.
Uncle Ed: Comply with the standard of care, but do not write into your contract, that you're going to perform the work according to IICRC standards.
RC: Are you sure?
Uncle Ed: it's not going to help you sell any jobs. It's going to marry you to these thick documents that are hundreds of pages long. All the plaintiff's attorney has to do is point to one sentence in there that you didn't strictly comply with and they’ll be able to shout about a breach of contract.
RC: That doesn't sound good.
Uncle Ed: You don't need that kind of headache.
If you want to know more about The Restoration Lawyer and his involvement in the industry, watch our prior interview with Ed Cross or read the article in Restoration and Remediation (R&R) Magazine titled A History of Collaboration; A Future of Advocacy.
If this information has been helpful, please subscribe to The DYOJO Podcast and consider purchasing one of the books from our Be Intentional series. edit.
What comes to mind when you hear “bad faith” being used in a sentence with “insurance claims processing”?
According to the International Risk Management Institute, Inc. (IRMI), bad faith is,
A term describing blatantly unfair conduct that exceeds mere negligence by an insurance company. For example, a bad faith claim may arise if an auto liability insurer arbitrarily refuses to settle a claim within policy limits, where an insured's liability is incontrovertible.
How Does Bad Faith Affect Contractors?
Our local networking group for restoration contractors and claims professionals will be discussing “bad faith” with licensed public adjuster and respected claims umpire, Roger Howson. If you are in Washington State, or the PNW, reach out to The DYOJO regarding the Fellowship of Construction Knowledge and Entrepreneurial Development (FoCKED).
In preparation for our conversation, we discovered this helpful from the Law Offices of Edward Cross. Brian K. Theis outlines three factors involved in determining whether there have been violations of the covenant of good faith and fair dealing for insurance claims.
How Does Bath Faith Affect Homeowners?
Insurance policyholders, which includes all homeowners, want to have the confidence that their policy will make them whole in the event of a water for fire damage to their greatest asset; their homes. Use this information to educate yourself and bolster your ability to advocate for what is right during the claims negotiation process.
If you want to prevent unfair conduct during an insurance claim:
Are you aware of the rules and regulations for testing materials such as wallboard, texture, and floor coverings prior to performing any demolition work?
On the latest episode of The DYOJO Podcast (#83) we discuss the importance of identifying and mitigating hazards during water and fire damage restoration projects. There are broad rules such as those in the OSHA General Duty Clause,
"The General Duty Clause from the OSHA Act of 1970 requires that, in addition to compliance with hazard-specific standards, all employers provide a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm."
There are also many specific rules regarding lead and asbestos sampling which are regulated by various entities such as Labor and Industries (LNI) in Washington State.
We discuss some of these elements further in a recent article from The DYOJO Blog - thedyojo.com/blog/asbestos-testing-requirements-for-water-damage
Many of the safety practices that contractors follow for mold remediation originate with asbestos abatement protocols. We discuss some of the resources for these topics including:
Project your team members, your customers, and your organization by educating yourself and your clients on the best practices and regulatory compliance associated with property restoration.
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Do you know the asbestos testing requirements in your local jurisdiction? In the state of Washington, if you read the LNI (Labor and Industries) regulations, the letter of the law requires everything, regardless of age, to be tested for asbestos prior to demolition or remodeling. This would apply to water and fire damage scenarios where materials such as wet drywall are being removed.
As a contracts you want to do your best to:
Test for lead and asbestos before you do any work
It must be understood that these regulations are not suggestions, they are the law and compliance is mandatory. Many restoration contractors are adhering to high standards and best practices, yet they encounter pushback from insurance representatives or clients who are unaware of these compliance factors. Homeowners, adjusters, and property managers will benefit from documentation that educates them on the responsibilities of all parties to adhere to testing requirements.
I was discussing this with a local mitigation contractor who was being questioned by a representative from the insurance company on a claim. It may be that this person has never heard of these laws or encountered a contractor charging for them, so we forwarded this citation from LNI in Washington,
“Building owners and construction contractors both share responsibility for asbestos testing when doing work on the building. A good faith inspection for asbestos, performed by an AHERA certified building inspector is required before any remodel, repair, removal, or other work that could disturb suspect materials.”
Educate homeowners and property managers on their responsibilities
Previously we wrote more extensively on this topic for an article in Restoration and Remediation (R&R) Magazine on the responsibilities of property owners, property managers, and contractors. You may find that content helpful in your efforts to educate various parties during an insurance claim.
For additional reference, see the picture attached to this article which was taken at our local landfill in Puyallup, WA. The landfill requires proof of clearance following asbestos testing prior to being able to dispose of worksite debris.
At times citizens of the United States joke that Florida is another world. The current insurance mess in The Sunshine State would point to one area where this is statistically accurate. More specifically, insurance claims lawsuits. Current Governor Ron DeSantis recently cited statistics demonstrating that his state generates 9% of property insurance claims but is the clear leader with 79% of the nation’s homeowner insurance lawsuits. In response, the Governor has called for a special session on property insurance, declaring that Florida citizens need assistance in the face of ever-rising premiums.
While anyone who has insurance should be asking, what can we learn from this situation, what most observers are asking, is who can/should we blame?
Senator Gary Farmer, a Democrat out of Ft. Lauderdale points the finger at insurance companies who routinely deny claims. He is a trial lawyer and stated,
“We must protect homeowners in Florida by calling a special session to address our state’s property insurance crisis, and the only way to effectively do so is to ensure that insurers are held accountable to their obligations to their customers.”
According to Insurance Journal, Florida’s domestic marketplace lost $1 billion during the first three quarters of 2020 which is reported to be more than double its underwriting losses in 2019. While the concern expressed by many is to protect the consumer from excessive rate hikes, the driver appears to be losses incurred by the insurers.
As chief spokesman for the Insurance Information Institute, Mark Friedlander, throws shade upon, “Bands of unscrupulous roofers, going door-to-door, soliciting claims.” He believes that consumers are being persuaded to sign over benefits to their claims. In scenarios where coverage is denied by the carrier, the insurer settles rather than risk a trial in what Mark believes are, “Frivolous lawsuits by the thousands.” If you listen closely, even Mark notes that claims denials are a factor.
In 2021, Florida Insurance Commissioner David Altmaier alerted the Florida House Commerce Committee of what he observed as consistently high litigation trends. According to The National Association of Insurance Commissioners (NAIC) and data from the Florida Office of Insurance Regulation (OIR):
OIR analyzed the data between Florida and other states to attempt to determine the contributing factors. The research was inconclusive in detecting systemic patterns and the office offered no conclusion for the state's outlier status.
Altmaier suggested that legislators look into, “Reforming the state’s one-way attorney’s fee statute.” They want to enable policyholders to retain their rights to filing lawsuit but remove incentives for attorney, “To file illegitimate claims.” In 2019 the state enacted assignment of benefit (AOB) reforms which he believes, “Preserves important consumer protections, while providing a framework to ensure litigation brought against insurance companies is legitimate.”
Many argued leading up to 2019 that the AOB was at the root of rate increases. As such, consumer protection was the flag under which the calls for reform were waving. Yet, even with these reforms, Barry Gilway, president and CEO of Citizens Property Insurance, states, “The reality is, while AOB is going down, first-party litigation is going up.” If I understand this correctly, this means that AOB, which allowed contractors (third-party) to sue the carrier on behalf of, or in the first-party position, is now down but policyholders, the first-party contract holder with the carrier, is now suing directly?
If the above is true, consumers in Florida are dissatisfied with the actions of their carriers at the time of claims processing. As we stated in the opening paragraph, Florida is otherworldly as it is home to a buffet of natural disasters, including hurricanes, tropical storms, tropical depressions, tornadoes, wildfires, and floods, the state has several unique insurance-related operational factors, a few of which include:
We mentioned the “consumer protections” language which drove the AOB conversations and now they are the same concerns underlying this next round of reforms. Take a look at what proponents say about Senate Bill 76 and help me discern who is being “protected”:
Protection From Whom?
Do the three items above protect the consumer or the carrier? The insurance companies are clear in who they have on their suspect board as the “bad guys”. If that wasn’t already clear, they blame contractors and attorneys. But they know that few would listen to them if they came out and said that consumers need to be protected from excessive insurance rates while also presenting themselves as the mediators of justice in righting this wrong.
How does this logic go, “If contractors and attorneys didn’t charge so much, we (the insurance companies) could charge you less?” Does anyone believe this would be the outcome? If the politicians could pass legislation that would restrict what contractors and attorneys can charge for, then of course, the insurance companies will gladly reduce their prices. Just so we are clear, this is sarcasm. Yet, it appears that this is the consensus among many commenters following this, and similar stories.
How Do We Protect Consumers?
If the goals is consumer protection, the people must accept their responsibility to educate themselves on what they are buying, what the insurance policy covers, what it excludes, and what to expect during the claims process. As a general rule, it is best for the consumer to do business with people invested in their local market.
If you are an insurance policyholder, when you purchase your homeowners policy you should hire a local insurance agent who will walk you through the process and is committed to being actively involved whenever there is a claim. The opposite of this is shopping for the lowest rate, without understanding the coverage limitations, and/or hiring an agent who will direct you to a 1-800 number for claims filing while washing their hands of the process.
If you are a homeowner who has experienced damage, find a contractor who is based and active in the local community. You want to hire people who are going to care about their reputation when it comes to work quality and ensuring project completion.
While it is fun to talk about blame, the reality is that there are bad actors in each of the groups we discussed. Homeowners are not excluded from being in that category. There are plenty of opportunistic insureds who believe their policy should do more than restore them to pre-loss conditions during a claim.
In the rush to assign blame, often the loudest voices, or the deepest pockets, will prevail in painting the picture of who the culprit is. Consumers must pay attention to and play and active role in understanding that insurance is a key factor in protecting your largest asset, your home. Listen for fear tactics that attempt to persuade you, and your elected representatives into doing the wrong things for the right reasons. We should all be careful not to make a bad situation worse by restricting consumer options in future circumstances.
Jon Isaacson, The Intentional Restorer, is a 19 year veteran of the property restoration industry and a business coach through his organization The DYOJO.