BLASTING CLAIMS 101: POTENTIAL COSTS
April 27, 2016 | blasting
In recent years, there has been an ever increasing number of property damage lawsuits filed against those industries who use explosives (Ludwiczak, n.d.). These claims for blasting damages are mainly against the mining, construction, and quarry operations throughout the United States (Ludwiczak, n.d.).
Blasting claims usually arise in a similar manner. When owners become aware that blasting will be taking place in their area, many immediately become fearful of the effects on their property. While they had no reason to notice damages in their home before, the owners begin to carefully inspect their property and discover damages that were present well before the first blast was detonated. However, given their recent discovery and their lack of knowledge of explosives, the owners likely will place responsibility for the damages on every entity involved in the blasting operations. At that point, the owner is likely to either assert an informal claim against the blasting contractor or retain an attorney and begin formal legal proceedings. It is natural for an owner in a residential area to discuss this type of claim with friends and neighbors, often in an effort to determine whether they have the same types of issues (Stone, 2015). If the neighbors discover damage to their own property, then a domino effect of claims may soon begin.
The scenario described above, where owners assert claims for damages not caused by blasting, is all too common. In fact, an engineering study of 2,250 blasting damage claims from 1999 to 2008 in 11 states were investigated and these investigations determined that the majority of the claimed blasting damages were found to be caused by something other than blasting (Grigoryan & Hutchison, n.d.). Specifically, the study determined that blasting ground vibration damage claims were valid less than 1.3 percent of the time (Grigoryan & Hutchison, n.d.).
Even though an owner’s blasting damage claim often lacks merit, most courts allow significant damages to be recovered if the claim is successful. For compensatory damages, the measure of damages in a negligence action is that amount necessary to compensate the injured party for the damages proximately caused by the tortious conduct (Westlake Properties, Inc. v. Westlake Pointe Prop. Owners Ass’n, Inc., 2007). The measure of damages may differ depending on the jurisdiction. For example, in West Virginia, “when residential real property is damaged, the owner may recover the reasonable cost of repairing it even if the costs exceed its fair market value before the damage” (Brooks v. City of Huntington, 2014). However, in neighboring Virginia, the “proper measure of damages for permanent injury to real property is the diminution in the market value of the property” (Douthat v. Chesapeake & O. Ry. Co., 1944).
Further, in their prayer for relief, owners often don’t stop at requesting the repair costs or the diminution in value of their property. Depending on the jurisdiction, the owners may also seek compensation for loss of use, mental anguish, annoyance, and inconvenience (Jarrett v. E. L. Harper & Son, Inc., 1977; Dockins v. Drummond Co., Inc., 1997). Additionally, owners may also seek punitive damages, the purpose of which is not so much to compensate the owner but to punish the alleged wrongdoer. (Simbeck, Inc. v. Dodd Sisk Whitlock Corp., 1999).
In addition to the damages potentially recoverable by the owner, there are other costs to consider:
- A large claim may result in the delay of a project;
- Employees of a contractor or owner often have to invest a substantial amount of time participating in the defense of the claim;
- Bad publicity from a claim can negatively impact a contractor’s reputation;
- Even if the contractor has insurance that is triggered by the claim, there will likely be a high deductible that must be paid by the contractor; and
- Multiple claims for blasting damages may lead to increased insurance costs, higher deductibles, and difficulty obtaining insurance for future projects (Ostrowski, 2003).
Taking into account the above considerations, it is clear that claims for blasting damages, with or without merit, carry substantial costs for the entities involved. In my next post of this series, I will begin to discuss the pattern and defense of a routine blasting claim, including the typical causes of action included in the plaintiff’s complaint.