Florida's Sinkhole Crisis Continues to Gain National Attention; Is Florida Doing Everything Necessary to Protect Residents?

It is has been exactly one week since the tragic sinkhole event that took a man’s life on February 28, 2013. The national spotlight again shines on Florida’s sinkhole crisis. I want to first send my condolences to the victim’s family. I hope his family finds peace and much needed support. After a tragedy like this, we wonder what, if anything, can be done to prevent this from happening again?

This type of event is incredibly difficult to thwart and catastrophic cover collapse sinkholes can strike without much notice anytime, anywhere. Nonetheless, as a society, we must consider what we can do to identify these types of events before they happen again. I suggest we consider the following:

  • What are the warning signs of sinkhole activity?
  • Is Florida doing everything it can to prevent this tragedy from happening again?
  • What does an insured need to know if he or she suspects sinkhole activity is causing damages to his or her residence?

Recognizing damages commonly associated with sinkhole activity is relatively easy. The common signs include cracks to the elevation of the structure, cracks to the property’s flooring, loud random banging noises, difficulty opening and closing windows and doors, depressions in the yard, cracks in the driveway and garage, and any other damage that could be caused by movement of the earth. The difficulty lies in determining whether these damages result from sinkhole activity or some other unrelated cause.

For example, parts of Florida’s topography include a shallow clay layer ranging from directly beneath a structure’s surface down to about twenty feet. Clay shrinks during dry periods and expands when it becomes wet. This movement directly beneath a structure causes damage, but this condition alone will not result in a cover collapse sinkhole.

There are other causes of loss that result in damages similar to damages caused by sinkhole activity. Unfortunately, the only way to determine whether sinkhole activity is a contributing cause of those damages is to test the property for sinkhole activity. If sufficient testing is not conducted, then we are not doing enough to prevent this tragedy from reoccurring.

Interestingly, Florida required insurance carriers to provide sinkhole coverage since 1981. The laws provided that when an insured reported a potential sinkhole claim, the insurance carrier was required to test the property for sinkhole activity. The laws stayed substantially in effect until May 17, 2011.

Today, the laws are much different, and insurers’ obligations with regard to testing are much more limited. Under the current laws, many, insurance carriers contend testing for sinkhole activity is no longer required under Florida Statute 627.706 and 627.707 (2012). Instead, insurance carriers argue they are only required to determine whether a structure has suffered structural damage, as defined by statute:

  1. Interior floor displacement or deflection in excess of acceptable variances as defined in ACI 117-90 or the Florida Building Code, which results in settlement-related damage to the interior such that the interior building structure or members become unfit for service or represents a safety hazard as defined within the Florida Building Code;
  2. Foundation displacement or deflection in excess of acceptable variances as defined in ACI 318-95 or the Florida Building Code, which results in settlement-related damage to the primary structural members or primary structural systems that prevents those members or systems from supporting the loads and forces they were designed to support to the extent that stresses in those primary structural members or primary structural systems exceeds one and one-third the nominal strength allowed under the Florida Building Code for new buildings of similar structure, purpose, or location;
  3. Damage that results in listing, leaning, or buckling of the exterior load-bearing walls or other vertical primary structural members to such an extent that a plumb line passing through the center of gravity does not fall inside the middle one-third of the base as defined within the Florida Building Code;
  4. Damage that results in the building, or any portion of the building containing primary structural members or primary structural systems, being significantly likely to imminently collapse because of the movement or instability of the ground within the influence zone of the supporting ground within the sheer plane necessary for the purpose of supporting such building as defined within the Florida Building Code; or
  5. Damage occurring on or after October 15, 2005, that qualifies as “substantial structural damage” as defined in the Florida Building Code.

As you can see, these definitions are incredibly technical and difficult to understand. In short, only after confirmation from an insurance carrier’s chosen expert that structural damage has occurred, will the structure then be tested for sinkhole activity. It seems counterproductive, if not dangerous, that carriers are not immediately required to test for sinkhole activity. Nevertheless, this is the current state of the laws governing sinkhole investigations in Florida at this time.

Are we doing enough? No. The current laws are unreasonable because carriers are no longer required to test a structure for sinkhole activity unless the structure suffers extensive damage. In essence, sinkhole activity may be present at a structure, but coverage will not be provided until the sinkhole activity causes structural damage. Simply put, this is nonsense.

Finally, if an insured is experiencing damages commonly associated with sinkhole activity, the insured needs to consider reporting a potential sinkhole claim to his or her carrier. I recommend seeking guidance from a state licensed public insurance adjuster or attorney who has experience in this area of the law. The issues are complex and experience matters.

I mentioned this type of event may be impossible to prevent. Nonetheless, more often than not, damages will begin to manifest themselves prior to a collapse. Because we can see the signs, we, as a society, have no choice but to ensure the inhabitants are safe. The only way to accomplish this is to test the property for sinkhole activity when presented with these types of damages. This is reasonable because the cost differential between retaining an engineer to determine whether a property has sustained enough damage to reach the level delineated in Florida Statute 627.706(k) (2011) is minimal, if not the exact same as testing the structures for sinkhole activity. There is absolutely no reason for a carrier to refuse to test the property for sinkhole activity.

If you want to see a change to the current sinkhole laws, please contact your state representative. These individuals work diligently to represent all of us and they want to hear your thoughts.

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