Lawsuits and Water Losses

August 12, 2004
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With all the media hype and misinformation about mold these days, many water-restoration contractors find themselves on the receiving end of lawsuits sooner or later.

Improper or inadequate drying are the allegations leveled against companies that have no choice but to defend themselves. In my capacity as an industry consultant and contributor to the writing of industry standards, I often find myself serving as an expert witness in litigation involving water-damage restoration or mold remediation. Depending on the merits of the case, I work both for and against water-restoration contractors. However, the questions I ask when attempting to find out what took place are basically the same.

These initial questions are an attempt to determine whether or not the restoration contractor followed the industry "standard of care," which means those practices that are common to reasonably prudent members of the trade who are recognized in the industry as qualified and competent.

Of course, regardless of training, all contractors I deal with declare their firms to be "qualified and competent" based solely on experience gained on jobs that their company has processed and for which they have not been sued. But no matter how sincerely contractors believe in their experiential qualifications, the industry standard to which they are held may be quite different.

The following is a list of fairly standard questions I ask contractors in order to determine if their firm actually is "qualified and competent." Even if they don't hear these questions from me, almost inevitability they'll be hearing them from the opposing attorney in depositions or court proceedings.

Licensing
Foremost, is the water-damage restoration firm properly licensed to do business in the area in which it is working? This indicates that the contractor is a good corporate citizen and is attempting to play by the rules established by governing authorities in its community.

Certified Firm
Can the firm demonstrate that it is a good industry citizen as well? Does it support and promote industry institutions and programs that explore technical issues, create educational and certification programs and protect consumers using those programs and services? What about trade association membership? Registrations and association membership are strong evidence that the restoration company is supporting its industry and attempting to stay abreast of and conform to the industry "standard of care."

Certified Technician(s) on the Job Site
While company qualifications are important, of overriding importance is the qualification of the technicians on the job site who actually performs the work. No matter how big the company is or how long it has been in business, no matter how impressive its marketing and public relations program, ultimately it boils down to the question of whether the individual supervising and performing the work for that company was qualified and competent.

Certainly business owners argue that, if the company is in the business, then all its technicians are qualified - especially when they have active company training or OJT. However, an individual's qualification is most objectively determined by the industry designations he or she holds. Included may be:
Water Damage Restoration Technician (WRT - at a minimum!). If you're going to send a technician to this course, let me highly recommend the IICRC-approved three-day version of WRT, rather than the two-day version, since this provides much more opportunity to cover topics like mold, health and safety, and psychrometry, along with time for hands-on demonstrations.
Applied Structural Drying (ASD). This is a primarily hands-on course that floods a residential structure and, over the course of three days, students dry it completely while maintaining daily humidity and structural materials MC records throughout the process. WRT is a prerequisite.
Applied Microbial Remediation Technician (AMRT). This is a four-day course devoted almost entirely to mold and remediation practices that conform to the IICRC S520 Standard and Reference Guide for Professional Mold Remediation.

Certainly, the ultimate evidence of technician qualification involves IICRC advanced designations to include Journeyman Water Restorer (JWR), a combination of three certifications plus at least one year of experience, and Master Water Restorer (MSR), a combination of six certifications plus at least three years of experience.

Moisture Detection/ Measuring Instruments
Next question: What instruments were used in determining the extent of water damage, and ultimately, to determine that materials were dried to a reasonable approximation of pre-loss condition? Sorry, a moisture probe used to detect moisture migration in carpet and pad won't suffice anymore. At a minimum, it's highly recommended (again, industry standard of care) that every water loss be evaluated initially with:

  • Moisture probe (determines the perimeter of wetting on carpet and pad).
  • Thermohygrometer (used to determine temperature and relative humidity outside and inside the structure, and at the dehumidifier and HVAC outlets, and in unaffected areas as well).
  • Moisture meters (both non-penetrating for quick evaluations and penetrating to document the return of materials to "pre-loss condition").

    Equipment
    The water-restoration industry has undergone a veritable revolution in equipment technology in recent years. New extraction equipment, new air- moving equipment, new dehumidifier technology all combine to significantly decrease drying time along with the complication and cost of water losses. When asking questions, I want to know how well a contractor has kept abreast of changes in industry technology. Specifically:

    What type and capacity of equipment was used? For example, did you use low-grain refrigerant (LGR) or desiccant technology when drying Class 2-4 water losses, or are you still using out-dated conventional refrigerant technology? Do you even know what the "Classes" of water losses are?

    What about the quantity of air movers used? Do you conform to the industry standard of care for drying structural materials (initially, one per 10 to14 linear feet) or do you still allow the insurance claims representative to dictate these matters? How did you determine the initial dehumidification capacity to dry the job adequately and accurately?

    Documentation
    This probably is one of the most-violated issues faced by contractors when the lawsuit arises. Remember that neither your defense attorney nor I were on the job site. Even with extensive experience, it's difficult if not impossible for us to determine the exact circumstances and results involved in the drying job. Your daily records are the only thing we have to confirm whether or not the correct conditions for drying were established and whether structural materials were dried to industry standards that made mold growth impossible.

    Other than proper authorization forms, at a minimum, two documents are required:

  • a. Daily Humidity Record - This record of temperature, relative humidity and specific humidity taken outside and inside the structure, and at the dehumidifier or HVAC outlet (where appropriate) confirms that the technician established and maintained proper drying conditions for the duration of the job. However, it does not establish that building materials were dried to industry standards.
  • b. Structural Materials Moisture Content (MC) Record - This critical document confirms that multiple materials were, in fact, dried to accepted industry standards and that it was impossible for mold to grow as a result of the current water loss for which you were responsible.

    Bottom line, contractors who don't complete and update the Daily Humidity Record and Structural Materials MC Record throughout the duration of the job are begging for litigation, in which it's difficult, if not impossible, to defend them effectively. These documents also serve as a strong indication of the company's professionalism.

    Work conforms to IICRC S500/S520
    Last, but far from least important, is performing work in accordance with industry-accepted standards of care. It is highly recommended ("standard of care" again) that all water-restoration contractors have at least two documents in their library of reference materials and use in on-going training programs. Theses documents are the IICRC Standard and Reference Guide for Professional 1) Water Damage Restoration and 2) Mold Remediation. Both documents set forth the standards of care for restoration and remediation practices that either avoid additional contamination or ensure the return of a structure or area to "normal fungal ecology."

    Contractors, claims representatives and others waste countless hours arguing the recognition and merits of these standards all the time. But they are the industry-accepted and recognized documents that are used to determine whether or not contractors are conforming to the industry "standard of care." They are referenced, even internationally, by countless documents in the institutional, public (government) and private sectors of our industry. In court, they are universally accepted as the standard of care unless there is some reason for deviation that can be proved to be necessary and prudent.

    I am not a lawyer and am not qualified to offer legal advice. That comes from your lawyer. Of course, the point of all this discussion is to forewarn restoration contractors of the ways in which they should be structuring and carrying out their water restoration work. Should we ever find ourselves working together, or even on opposite sides of a lawsuit, I would hope that a contractor would be well prepared to answer all these questions. Chances are, even if working for the opposing council, I'll advise my client that he or she doesn't have a valid legal position because the contractor followed the industry-accepted "standard of care."

    Litigation is time consuming and expensive. Being an ethical and genuinely nice person isn't relevant. Lawsuits should and can be avoided simply by ensuring that the company's work practices and technician qualifications conform to the industry standard of care - by doing the right thing to begin with.

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