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Oh No, There’s Asbestos

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A derecho swept through Iowa damaging the insured’s siding, and it’s going to require a complete removal and replacement of the siding. The contractor informed the adjuster that the siding contains asbestos. It wasn’t disturbed by the windstorm and is safe now, but it will be disturbed when it’s removed, so that’s going to have to be done by specially-licensed professionals with hazmat suits according to procedure. The adjuster handling the claim is willing to pay for the siding replacement. However, she is not sure about all of those extra costs to handle and contain the asbestos.

Notable Timestamps

[ 00:16 ] – Today’s scenario begins with a derecho which swept through– wait, what is a derecho? An outlaw or a windy, violent, and quick thunderstorm?

[ 00:43 ] – After reading down the policy exclusions in the 2011 ISO HO3, the adjuster saw (1) the pollutants exclusion and (2) the Ordinance or Law exclusion, and she is seeking information about whether either of those applies to the extra asbestos abatement costs. 

[ 01:53 ] – Over the years, asbestos changed in the cultural imagination from a miracle substance to a frequent mention on the law firm commercial circuit. The material is still being found anywhere heat needed to be regulated.

[ 04:26 ] – What laws should apply, and what about coverage? Generally, when you have a covered loss, the insurance company should include everything necessary to make that repair.

[ 06:40 ] – Asbestos is a pollutant, but (1) the pollutants exclusion doesn’t apply to a Coverage C peril, and (2) the pollutants exclusion doesn’t apply where the pollutant hasn’t been released.

[ 07:46 ] – Laws do require the insured to respond to pollutants as described in the Ordinance or Law Exclusion, but it was intended for building code issues and applying it to asbestos would likely be too broad of an application. Common sense safety measures are part of replacement cost.

[ 09:35 ] – The Ordinance or Law Exclusion has the anti-concurrent causation preface, which avoids any proximate cause analysis.

[ 10:31 ] – Asbestos claims often come up in third party scenarios. Could this be a hint for a future podcast episode?

[ 11:30 ] – What if an insurer decided not to cover anything related to asbestos? Courts tend to enforce plainly worded exclusions or special limits.

[ 13:00 ] – Tim provides a recap of the scenario and the points above.

Your PLRB Resources

Coverage Question – Asbestos When There Is a Covered Loss – https://search.plrb.org/?dn=79659

Coverage Question – Asbestos Remediation – Pollutant? Ordinance or Law? – https://search.plrb.org/?dn=79806

Coverage Question – Asbestos Removal After Water Loss – https://search.plrb.org/?dn=74381

Employees of member companies also have access to a searchable legal database, hundreds of hours of video trainings, building code materials, weather data, and even the ability to have your coverage questions answered by our team of attorneys (https://www.plrb.org/container.cfm?conlink=sec/cq/default.cfm) at no additional charge to you or your company.

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Please reach out to us with your scenario! This could be your “adjuster story” sharing a situation from your claims experience, or a burning question you would like the team to answer. In any case, please omit any personal information as we will anonymize your story before we share. Just reach out to scenario@plrb.org (mailto:scenario@plrb.org).

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The views and opinions expressed in this resource are those of the individual speaker and not necessarily those of the Property & Liability Resource Bureau (PLRB), its membership, or any organization with which the presenter is employed or affiliated. The information, ideas, and opinions are presented as information only and not as legal advice or offers of representation. Individual policy language and state laws vary, and listeners should rely on guidance from their companies and counsel as appropriate.

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Recent Updates

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Building Codes

Does Kaysville, Utah, Residential Building Code Require Ice Barrier Underlayment When Replacing a Roof?

June 26, 2024 By Dan Hartweg QUESTION: For a roofing project in Kaysville, Utah, does the residential building code require ice barrier underlayment? RESPONSE: Yes. The 2021 Utah State Residential Code (USRC) does not require ice barrier underlayment unless there is a history of ice forming along the eaves causing a backup of water, which is left to local jurisdictions to determine and adopt the requirement. 2021 USRC § R905.1.2. Utah did not complete Table R301.2, “Ice Barrier Underlayment Required” column, leaving it to local jurisdictions to complete the table. 2021 USRC Table R301.2. While the Kaysville City Code does not contain any amendments to Table 301.2, according to the Kaysville City Community Development website, ice barrier underlayment is required.  FACTS: Roof repairs at a private residence located in Unincorporated, West Jordan, Utah. DISCUSSION: Utah adopted the 2021 International Residential Code (IRC), including Appendices AE and AQ, with amendments, as the uniform statewide residential code known as the 2021 Utah State Residential Code (USRC) and is part of the mandatory statewide building code, the State Construction Code (SCC). Utah Code § 15A-2-101. (Adoption of SCC); Utah Code §§ 15A-2-103(b), (d), and (m) (adoption); Utah Code §§ 15A-3-101 through 206 (IRC amendments); Utah Code §§ 15A-4-201 through 207 (IRC local amendments); 2021 USRC (ICC page).  The State and its political subdivisions are required to follow the SCC. Utah Code § 15A-1-204(1)(a). The Division administers the SCC, but it is not within the Division's responsibility to enforce it, the responsibility for inspections and enforcement under the SCC fall on the compliance agency. Utah Code § 15A-1-205 (Division duties); Utah Code § 15A-1-207(1) (compliance agency with jurisdiction over project shall inspect and enforce SCC). A compliance agency is defined as an agency of the State or any of its political subdivisions which issues permits for construction regulated under the SCC. Utah Code § 15A-1-202(6). The compliance agency must follow the Division’s established standardized permit system, may charge a fee but must impose a 1% surcharge to help fund Division education efforts, and must promptly review plans and inspect properties. Utah Code § 15A-1-209 (building permit requirements and surcharge); Utah Code § 10-6-160 (municipality may charge fee and must review plans and inspect properties promptly); U.A.C. R156-15A-220 (standardized permits). A search of the subject property on the PLRB address search page indicates that it is located within the City of Kaysville, Utah.  2021 USRC Reroofing Section R908 of the 2021 USRC on Reroofing requires that recovering or replacing an existing roof must comply with the materials and methods outlined for new roofs: 2021 USRC § R908.1. Therefore, the provisions concerning ice barrier underlayment and drip edges in Chapter 9 must be considered.  ICE BARRIER UNDERLAYMENT Ice barrier underlayment is required under Section R905.1.2 where there is a history of ice forming along eaves causing a backup of water as designated in local amendments in Table R301.2: 2021 USRC § R905.1.2.  Utah did not complete Table R301.2 as follows, in relevant part: 2021 USRC Table R301.2. Because no amendment to IRC Table R301.2(1) was made by the legislature, the need for ice barrier underlayment is left to local jurisdictions. Utah Code §§ 15A-3-101 through 206; 2021 USRC Table R301.2. Kaysville City adopted the current version of the International Residential Code adopted by the State of Utah. Kaysville City Code § 18-2-2. The City did not adopt any amendments to Table 301.2. Id., see also, Kaysville City Code Title 18, Chapter 3. However, according to the City’s website, ice barrier underlayment is required. Kaysville City, Community Development, Roofing Requirements.  DISCUSSION: Utah adopted the 2021 International Residential Code (IRC), as amended, as the 2021 Utah State Residential Code (USRC) and part of the 2021 Utah State Construction Code, a uniform statewide code. The state did not complete Table R301.2, leaving the decision to require ice barrier underlayment up to local jurisdictions where there has been a history of ice forming along eaves causing a backup of water. While the Kaysville City Code does not contain an amendment to Table R301.2, according to the Kaysville City Community Development website, ice barrier underlayment is required.

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