Contractors

Asbestos & Lead-Based Paint Abatement

Asbestos is the name given to a group of naturally occurring fibrous minerals resistant to heat and corrosion. Many residential, commercial, and industrial applications used asbestos-containing materials (ACM). When asbestos fibers are disturbed and released, they can be inhaled and cause serious health hazards or fatal diseases such as asbestosis, lung cancer, mesothelioma, and other cancers.

Lead was historically used in paint but was banned in residential and commercial buildings in 1978. Lead can be ingested or inhaled through lead-based paint (LBP) debris or dust exposure. Lead can be toxic, especially in children, and can lead to severe health, learning, and behavioral issues.

Contractors that perform or subcontract ACM and LBP abatement may face numerous environmental and professional exposures. Improper handling, containment breach, and failure to fully abate ACM or LBP can lead to third parties being exposed to asbestos fibers or lead-containing dust or debris, resulting in cleanup, bodily injury, and property damage claims. Transportation, storage, and disposal of ACM and LBP also generate potential environmental tort liability.

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Incomplete Site Surveys

Improper identification or the failure to completely identify and remove all areas of ACM and LBP may result in inadequate recommendations and remedial actions, which could lead to hazardous air releases and result in additional remediation, tort liability, punitive damages, fines, and regulatory violations.

Abatement Plan Compliance

Abatement contractors following others’ abatement plans can also incur professional liability if they change procedures or equipment in the field, resulting in an economic loss.

Waste Classification and Segregation

ACM and LBP wastes may be classified as hazardous and must be properly segregated to avoid being accidentally mixed with non-hazardous waste and improperly disposed of. Improper disposal can lead to cleanup and environmental tort liability.

Sample Collection

Sample collection, which involves disturbance of building materials, may result in the release of asbestos fibers or lead-containing dust. Third parties could be exposed, and cleanup may be required.

Lead Dust and Debris Release

Significant lead exposures can arise from removing LBP from surfaces such as bridges and structures without adequately controlling and capturing LBP-containing dust and debris. Improper containment, equipment use, or breaches in containment systems may spread lead contamination to nearby areas. Cleanup, third-party bodily injury, or property damage claims may result, and violations, penalties, and fines could be levied against the abatement contractor.

Containment Controls

During asbestos abatement activities, breaches in containment or failure to properly seal off abatement areas can spread asbestos fibers, leading to claims and regulatory issues.

Fiber Release

Asbestos can be found in many residential, commercial, and industrial applications, including ceiling and floor tiles, heating duct insulation, thermal pipe insulation, roofing materials, and spray flame retardants. When asbestos fibers are disturbed and released, they can be inhaled and cause serious health hazards or fatal diseases such as asbestosis, lung cancer, mesothelioma, and other cancers.

Worker Decontamination

Workers performing ACM or LBP abatement must follow adequate decontamination procedures. Workers returning home might carry fibers on their hair, skin, and clothes, indirectly exposing their families and others living with them. Secondhand exposure could harm family members and result in bodily injury claims.

Transportation and Disposal

During the transportation of ACM and LBP wastes, an upset or overturn of the transport vehicle could occur, releasing the wastes. Contamination could be spread or third parties exposed to hazardous air emissions, resulting in environmental liability for the contractor who arranges for or transports the materials.

Errors and Omissions

When performing professional inspections and analyses, abatement contractors can be exposed to professional liability risks. An error, omission, defect, or deficiency in any test performed or inaccuracy in preparing and performing work plans, diagnostic lab testing, or post-abatement certification could lead to tort liability and economic losses.

Waste Handling and Disposal Facilities

Waste container breaches or improper handling may cause air releases of asbestos fibers or lead-containing dust at a jobsite, during transit, or at a non-owned disposal site. When an investigation for improper disposal occurs at a disposal facility, it can result in potential liability for all parties that manifested waste to the facility.

Contracting operations completed “by or on behalf of” the insured

Contracting operations performed at a jobsite

Third-party claims for bodily injury and property damage

Third-party claims for cleanup

Defense of third-party claims

First-party emergency response costs

Lead and asbestos

Sudden and accidental coverage for owned/leased locations

First and third-party transportation pollution liability

Abatement contractors can combine Commercial General Liability, Contractors Pollution Liability, and Professional Liability into one package policy.

Mold, legionella, bacteria, and fungi

Medical monitoring

Loading and unloading

Non-owned disposal sites

Civil fines and penalties

Natural resource damage

Claims Scenarios & Examples

A contractor was doing some renovation work on a building. In the process of removing old walls, lead-based paint was found. The contractor put up containment to help isolate the area to not spread the lead; however, the HVAC system was not sealed and disconnected in time. As a result, lead-containing dust was spread to other building areas. Cleanup and business interruption expenses exceeded $150,000.

An asbestos abatement contractor was doing remediation in tunnels below a correctional institution. Inmates alleged bodily injury from asbestos exposure, and lawsuits were filed on their behalf. After spending $425,000 in defense expenses, it was determined that the contractor was not liable for any damages that potentially incurred.

Asbestos was found in a classroom at an elementary school. Following abatement, it was discovered that asbestos dust covered classroom materials, floors, walls, cabinets, shelves, and was even under the carpet. The abatement contractor faced litigation.

A senior center hired a company to remove asbestos-containing materials. The owner of the senior center sued the company for not following correct procedures or safety precautions during the removal process. During the removal of asbestos-containing vinyl tile flooring, the contractor did not adequately wet the materials or maintain negative pressure within the removal area, resulting in the release of asbestos fibers and the exposure of some residents to asbestos.

A 500-pound bag of an asbestos-sawdust mixture fell off a flatbed truck and onto a highway. The truck was transporting several bags of the mixture for disposal. The freeway was shut down for cleanup efforts because driving cars could stir up hazardous material. The cleanup process included high-powered water hoses, vacuums, and hand scrapers to remove all asbestos material from every pavement groove. The material had been properly watered down, and while the transporting company had the appropriate permits and appeared to follow proper procedures, the incident was still investigated.

A residential contractor renovated the interior of a residential house constructed in the 1950s. The renovation removed paint from interior walls, window trim, and door jambs. The homeowners continued to occupy the house during renovations, so the contractor used a plastic barrier to seal the areas where he was working. The wife was six months pregnant, and renovations were finished before the baby’s birth; however, after birth, the child tested positive for blood lead poisoning. After investigating the source of the lead and finding it to be related to the renovation work, the couple sued the contractor for bodily injury and potential loss of future wage potential (due to a possible decreased intelligence quotient level for the baby) for $500,000.

A homeowner hired a lead abatement company to work on their home. The family was gone while the company worked, but they returned early. The family found that the workers did not adequately cover the furniture or close off the air ducts in the home. The family sued the abatement company for cleanup costs, air monitoring, and future medical expenses.

An owner of an old warehouse hired a contractor to remove asbestos-containing insulation from the walls of the building. The company followed all required safety protocols and procedures; however, a section of the containment barrier was accidentally damaged by a forklift operator moving supplies in the warehouse during the abatement process. The breach allowed asbestos fibers to escape into the surrounding environment and expose warehouse employees. Although the breach was not the contractor’s fault, he was sued for bodily injury and had to defend himself.

An abatement contractor removed the wallboard and applied a wetting agent to keep asbestos fibers from becoming airborne. The wetting agents were not applied evenly or in the proper amounts, which caused the building insulation to become saturated in some areas. The moisture led to mold growth, and the building owner sued the asbestos abatement contractor for cleanup costs related to the mold.