This past week an unfortunate nightmare came true – a family had the unthinkable horror of hearing and watching a loved one perish when a sinkhole opened under the man’s bedroom in his Florida home.  As has been reported, sinkhole losses have been increasing in magnitude and volume throughout the country, especially in certain jurisdictions such as Florida.  A study by the Florida Office of Insurance Regulation found the number of sinkhole claims in Florida more than tripled between 2006 and 2009.  And, it is only getting worse.

A sinkhole is a natural depression or hole in the Earth’s surface.  Sinkholes generally form through the natural process of underground streams causing erosion to surface layers.  Once the erosion occurs and the water dissipates, the layers above the erosion can collapse into the voids causing a hole.  However, these layers can also hold in place for years, and even after properties are constructed upon them.  Unfortunately though, once the layers fail and a sinkhole occurs, property constructed upon the void will be damaged.  And, in the worst cases, lives will be lost.

Generally, building codes and statutes in many states do not require a contractor to investigate for voids and the propensity for sinkholes.  Once would hope that after this terrible disaster, state legislatures would enact stricter construction codes.  However, in the interim, we will have to rely on the integrity of the construction professionals and their construction plans and specifications. 

Many engineering plans and specifications require a geotechnical engineering review of the ground that should identify issues related to voids.  If a building is not built pursuant to an engineering plan requiring such a review, and damages occur, a claim may be viable against the builder and any of its subcontractors who failed to comply with the plans.  Or, alternatively, if the building was constructed pursuant to the plans but the geotechnical review was inadequate, a claim may be viable against the geotechnical engineer.

Prior to undertaking a subrogation investigation of sinkholes, it is prudent to determine the age of the property.  As with all construction claims, it is important to determine whether the claim arises within the State’s statute of repose – Florida’s statute of repose is 10 years.  Florida Statute §95.11(3)(c).

In order to determine whether a viable subrogation claim exists, a licensed structural engineer should review the construction plans and specifications to determine if a geotechnical review was required.  If one was required, then a geotechnical engineer should be retained to determine whether the original review was proper.  Finally, the structural engineer needs to determine whether the damages caused were due to the original contractor’s failure to construct the property in accordance with the information supplied by the geotechnical review. 

Cozen O’Connor has been successfully handling construction claims for decades, including those arising from natural disasters.  We stand ready to address the ever increasing issues of sinkhole damage.  We are available for further consultation to discuss any recovery issues that you may be confronting.



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