Summit Raises Legal Questions
In a time when lawsuits run rampant and business owners’ hearts skip a beat every time someone stumbles over a crack in the sidewalk, key systems such as hvacr are an obvious area of concern for building owners and managers, as well as the contractors who installed them. The possibility of acts of domestic terrorism has raised the stakes even higher. There is an obvious concern that if an hvacr system is misused or does not “do what is supposed to do,” a building owner or manager may seek legal means to correct the situation. And ensuing litigation could directly involve the contractor who installed and/or serviced the hvacr systems.
Jackson, an attorney with the law firm of Kelley, Drye and Warren, LLP (Washington, DC), gave a synopsis of the legal landscape surrounding building security at the summit, but some important questions remained after his presentation. The News asked Jackson to provide answers for the follow-up questions.
FERTILE GROUND FOR LITIGATIONThe increased concerns about building security have caused some to speculate that the hvacr trade is becoming a “fertile field” for litigation.
“Given that we now live in an age of increased potential for attacks with chemical or biological weapons by international terrorists or homegrown terrorists with their own agendas, we must face the possibility that in the event of such attacks, litigation is sure to follow,” said Jackson.
“Notices have already been filed by 1,300 individuals of lawsuits seeking over $7 billion in damages arising out of the response to the attack on the World Trade Center. In this atmosphere, there is undoubtedly an increased likelihood of litigation alleging liability on the part of contractors or suppliers for errors and omissions in the design, installation, or maintenance of an air-handling system; and for litigation over coverage for such liability under errors and omissions policies.
“For example, if there is a bioterrorist incident involving an air-handling system, injured parties or their representatives may well argue that the contractor failed to include a system or technology that would have prevented the toxins from reaching the injured parties or at least mitigated the effect of the toxins.
“Given the rapidly evolving technology in this area and the claims that are being made with respect to control of anthrax and other toxins, it may be relatively easy for plaintiffs’ attorneys to find something they can point to that should have been done.
“Whether the plaintiffs would be able to convince a judge or jury that it would have been reasonable or customary to employ the alternative technologies is, of course, an entirely different question. Errors and omissions policies should cover such liability, but the scope of such coverage has not been tested in this area.”
LIABILITIES INVOLVING INJURED EMPLOYEESAnother important question involves the scope of employer liability surrounding incidences of biochemical attacks. Would a contractor be liable if an employee contracted anthrax while performing service on an hvacr system?
“An employer’s potential liability for injuries to an employee performing maintenance who is covered by a collective bargaining agreement will typically be resolved through the worker’s compensation process,” said Jackson. “As things stand today, claims relating to exposure to anthrax are no exception.
“If the employer knew about the presence of anthrax and did not inform the employee, the employee could argue that the employer sent the employee into an unreasonably dangerous situation and the employee could try to take the claim outside the worker’s compensation system, as a number of employees have attempted to do in asbestos cases. If that were to happen, the employer could be liable for additional damages and, in the worst case, could be subject to punitive damages.”
FRIVILOUS LAWSUITSOne summit attendee wanted to know if the legal system protected contractors from frivolous lawsuits. He asked, “If you can’t protect us, how can you ask us to protect our customers?”
“Given our legal system, there is no way to guarantee that your company will not be sued if there is a terrorist incident involving introduction of biological agents or toxins into a building and individuals are harmed as a result,” answered Jackson. “Of course, the fact that you are sued does not mean that you will be found liable and have to pay damages.
“However, just being sued can result in significant costs for a company because of the sometimes high cost of defending a company in litigation. For this reason, the legal system has provisions in place that are designed to discourage truly frivolous lawsuits. Attorneys who file such suits in federal courts can be sanctioned, and most states have similar provisions in place. At the same time, those who are responsible for how the legal system operates are always looking at ways of trying to ensure that the system is fair.
“Tort reform is the subject of ongoing debate in this country, and additional measures to discourage frivolous lawsuits may eventually be put in place. Discussions are under way in Congress regarding imposing limits on tort liability, particularly for small businesses. Those discussions have been given added urgency by the events of last fall.
“Moreover, Congress is examining the issue of insurance coverage for terrorist acts generally. In the meantime, the best defense against such suits is contractual indemnification and insurance, to the extent it is available.”
ACCESS TO GOVERNMENT INFORMATIONJackson addressed the question regarding the availability of information from the government task force on building security.
“As Ken Stroech of the Office of Homeland Security stated at the summit, the administration has formed an interagency work group (which Ken chairs) to look at the issue of security and bioterrorism as it relates to air-handling systems,” said Jackson. “One of the purposes of the task force will be to provide a focus for various public and private efforts that may already be under way in this area.
“The work group intends to develop guidelines for protection of air-handling systems in buildings and expects to prepare materials such as checklists for building owners. The work group is still in its early stages, with its second meeting scheduled for this week.
“Ken is very interested in obtaining input from groups such as ACCA. In fact, one of the matters that will be discussed by the work group this week is how to interface with other groups, including ACCA. In the meantime, Ken Stroech is probably the best source of information regarding the work group and its activities.”
LEGALITY OF PREVENTIVE MAINTENANCESince hvacr contractors are tasked to provide services deemed “preventive,” are there legal problems involving selling preventive maintenance agreements?
“There is certainly nothing that prohibits contractors from selling preventive maintenance contracts,” said Jackson. “As with any contract in these challenging times, I would advise a contractor to be careful about what representations and warranties might be made in connection with such a contract.
“The contract should also spell out clearly the role of the contractor in performing preventive maintenance. Because such a contract gives the contractor an ongoing role with respect to an air-handling system, it could be viewed as giving a contractor long-term responsibilities for the system that might increase the potential for liability if anything goes wrong unless such responsibilities are clearly laid out in the contract.”
Sidebar: Office of Homeland Security Answers Filtration QuestionsKen Stroech, director of Weapons of Mass Destruction Programs for the White House Office of Homeland Security, was forwarded this question from a summit attendee: “We have introduced the need for improved filtering of outside air. Since detection of agents is not available, will maintenance of this new filter equipment need to be performed by environmental hazard teams to protect the hvac maintenance staff?”
Two of Stroech’s staff members responded to the question. Andy Persily said, “I would think true maintenance could be handled by the building hvac maintenance staff, as long as they are properly trained and given the resources (e.g., time and money) to do the job right. However, if there is an ‘event,’ and the filter material is potentially hazardous, that’s a different story.
“At that point, the whole building or system may be hazardous. But I wouldn’t consider that maintenance; I’d consider that decontamination. And yes, specialists would be required.”
Bob Thompson added, “It is unlikely that a building will have undergone a chemical or biological assault without anyone knowing. Therefore, the likelihood of harm to unsuspecting personnel replacing filters is minimal. And as usual, the cost of using a hazardous waste approach is also an issue, considering that it would be unlikely that only the air filters would be unknowingly contaminated.
“This presumes the situation for the typical reader of The News. Any building currently requiring special filtration due to concerns over CBR [chemical, biological, radiological] contaminants hopefully has a special filter maintenance procedure in place.
“In the hundreds of air-handling unit investigations in which I have been involved, I have two or three times ended up with a sore throat and mild fever within 24 hours, and each time it was after being enveloped in a cloud of airborne particles emanating from an air filter that was significantly disturbed during removal.
“War stories from other investigators indicate a similar belief. Based on this, it might be worth considering guidance that a certain level of mask (possibly the $4 3M half-face units found at Home Depot, etc.) be worn when replacing air filters.
“If an assault has occurred, air filters would likely contain a concentrated amount of the airborne agent, and should therefore be handled and cleaned using at a minimum the same safety precautions as used for cleaning the rest of the building or area.”
— John R. Hall
Sidebar: Protecting Plenums And Controlling AirflowTwo questions arising from the summit involved protecting return air ceiling plenums and controlling the flow of inside/outside air in the event of a terrorist attack.
Warren Shoulders, senior vice president of International Environmental Corp. (Oklahoma City, OK) addressed the plenum issue.
“Protecting a return ceiling plenum is going to be difficult,” Shoulders said. “The best option would probably be to not have one, but instead duct the return air.
“Obviously, there are already a lot of buildings out there with them. I suppose you could install several sensors in the space, and shut the fancoils off if they detect anything. I would think the biggest problem is going to be guaranteeing catching everything. If it is a large plenum space, it would be easy to miss something.
“Security is really about control. In order for any system to be secure, you need to control all parts of the system. With an open ceiling space as the return air plenum, you don’t have control of the return air, which means you don’t have a secure system.”
Barney Burroughs, former president of the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) and now an outside director of Environmental Design International, Ltd., followed up on his previous answer regarding system shutdown (“Examining Building Security, The News, Feb. 4).
“Assuming the system(s) can be thoroughly shut down (including exhaust), then it becomes an issue of [finding and isolating] the contaminant source,” he said. “If the source is from the external environment, then system shutdown (if it can be accomplished in adequate time) is a positive move.
“If the source is from within, then the active system can either be detrimental — if it spreads the contaminant to adjacent zones — or a benefit, if it dilutes and purges the space. So it all depends, but it is obvious that system shutdown is not a ‘silver bullet.’”
— John R. Hall
Publication date: 02/18/2002