This year, hurricanes, with record rain, storm surges and winds, have resulted in severe damage to both commercial and residential buildings, mold contamination, and significant interruption to businesses in the impacted areas. Several Caribbean islands have been wiped away, Key West is unrecognizable, and Houston may have lost more than 150,000 homes. For most of us, luckily, the damage was less severe. My wife and I have leaks in our roof and elsewhere and lost a window (but gained an indoor tree). We lost power for about four and a half days. Friends in South Miami are still without power as of the writing of this post.

The legal implications of the hurricane aftermath extend well beyond mere rebuilding. Mold contamination and water intrusion must be addressed and properly remediated. Design and construction defects may be alleged to have exacerbated the extent of the damage from the hurricane. Employers may face workers’ compensation claims from employees and also may have vacation and lost wages concerns. Insurance coverage may be at issue. Construction costs may have escalated causing losses to builders or developers. Building permits and development approvals may expire due to delays caused by the hurricane. Condominium associations may not have sufficient reserves to act on emergency repairs. Construction licensing regulations may affect the ability to commence repairs and provide penalties for failure to engage properly certified contractors.

So what to do?

  • Make sure you and your family, employees and customers will be safe in your home or building.
    • Are there electrical system damage and risks?
    • Is the water safe to drink?
    • Is there a risk to the structural integrity of improvements?
    • Other Physical Hazards (don’t panic, but snakes and scorpions like piles of debris).
    • Contamination? Such as leaking petroleum tanks, chemical spills and the like.
  • Address potential health risks, whether mold or risky property conditions.
  • Secure your property and protect it from potential or further loss of property value.
  • Deal with Insurance.
  • Deal with Government Agencies such as FEMA
  • Deal with FP&L’s reimbursement programs.
  • Check with your mortgage lender. The lender may have the right to collect insurance proceeds and disburse the funds as repair and rebuilding proceed.
  • Only then commence to restore your property. Use only licensed and insured contractors. Where required by law, obtain all necessary permits and approvals. If you are part of a condominium or property owners’ association, make sure all Board approvals are obtained.
  • Get on with your life

Our lawyers have assisted clients in resolving insurance disputes, negotiating agreements in connection with assessment and remediation services, resolving design and construction defect claims,  implementing programs for addressing employee benefits, preparing hurricane and disaster response plans, and in finding their way through myriad environmental regulations.   In one recent example,  we resolved an insurer’s denial of coverage for water damage based on a theory that the building envelope was defectively designed or constructed and that the damage was not caused by a windstorm (as provided in the policy). By engaging the proper experts, a successful argument was made that the building envelope was properly designed and constructed and that it was indeed the hurricane-force winds that caused the water intrusion.

In another example, we assisted a client in requesting an extension of the expiration date for various development approvals that could not be met due to the direct delays of the hurricane, the difficulty in obtaining materials and the need to redesign to address increases in construction costs.

In addition to helping guide our clients in making proper recovery efforts, we are also focusing our clients’ attention on preventative measures to avoid future repeat damage and liability. We have found that many building and business owners have been hesitant to expend significant sums in prevention, in part to the belief that the recent hurricane landfalls in Florida were merely a fluke.  Whether global warming or a regular climatological cycle, it appears that the Atlantic hurricane season has been on an upswing that may continue for a decade or more. Proper preparation can lessen the business impacts and speed up recovery efforts.

 

Floridians like to think of themselves as hurricane experts. We know what to do when a storm is coming, and we are ready.  We prepare at the beginning of the hurricane season.  We stock up on our supplies of batteries, bottled water, canned foods and other non-perishables.  When a hurricane is coming, we are always ready.  Last year, Hurricane Matthew gave us a good test run of our hurricane preparedness as we had not had a hurricane in 10 years.  We passed with flying colors.

In 2017, we commemorated the 25th anniversary of Hurricane Andrew in late August, so our awareness has been at a peak high. Then, just 2 weeks ago, we watched as Hurricane Harvey devastated Southeast Texas and the Houston area as we kept our eyes on the scary developments in the eastern Atlantic.  What happened over the last 10 days has not ever happened here in South Florida.  People really took the news of an approaching major hurricane seriously and much further in advance than ever before.  Beginning one week before Irma would strike Florida, people began preparations in earnest.  We had already begun to feel the residual effects of Harvey at the gas pump as gas prices had risen about 50 cents per gallon.  Gas was rumored to be in short supply and by Sunday before the storm, gas lines began to form all over Miami-Dade and Broward Counties.  The lines grew longer each day and by Wednesday, stations began running out of gas and couldn’t get new supplies fast enough.  This lasted until Saturday when everything had to close as Irma approached.

Our family watched closely and made some new and different plans. Last year, my parents and mother-in-law stayed in their own homes.  But things have changed this year and this storm was potentially a category 5 and was headed right at us.  My mother-in-law, age 96, had recently fallen and dislocated her shoulder and earlier this year, her 25 year companion passed away.  We decided that she could not stay alone.  She would stay with us.  Likewise, my parents would come to us as my father is planning on back surgery in a month.  We would have a full house and needed to secure all three houses prior to the storm.  Therefore, our preparations began earlier than usual.  On Wednesday afternoon, both my office and my wife’s office announced they would be closed beginning Thursday.  I was therefore up early Thursday morning to begin work.

Starting with our house, the biggest of the 3, the plan began as it did last year, closing the most difficult shutters. Then, moving all outdoor furniture inside the house.  I moved on to my mother-in-law’s and began to help her pack things up, close her patio shutters and sort through her hurricane supplies which would be moved to our house.  The process continued through the day and Friday as I finished with my parents’ house, continued with our house and moved my mother-in-law into our home.  My parents would not move in until Saturday morning, but we all had dinner together Friday night.  The final shutters were closed early Saturday morning.  I made it a point to watch football all day Saturday so we wouldn’t go crazy watching hurricane coverage non-stop.  The first hurricane feeder bands began to move in mid-day and the weather began to affect my Directv satellite.  Fortunately, AppleTV came through and my football viewing was not affected (ESPN App worked great!).

The storm intensified Saturday night and Sunday morning. Though the eye slammed into the Keys and progressed north up the west coast, we were getting hit pretty hard.  There were 6 cell phones in our house that were blaring weather emergency alerts, primarily telling us of tornado warnings in our area all night.  When we did turn on the news, we saw that many tornadoes did in fact touch down in our immediate area (perhaps even near our neighborhood).

We were fortunate in that the power at the house stayed on all night. My wife woke up early and made pancakes for us.  Then, at 11:40, we finally lost power.  No NFL opening day!  And the boredom set in.  I read, listened to music and napped.  We played dominoes.  Let’s not forget the wine and whiskey!  There was plenty of that.  During a lull in the storm, my wife and I snuck outside for 5 minutes to see what was happening.  We were able to compare notes with a neighbor and snap a few pictures.  The storm continued through the night.

But Monday morning it was quiet. And sunny.  It was over.  Better yet, at 8:15, the power turned on!  How lucky were we!  I got up, got dressed, went outside, opened the down stairs shutters and surveyed the damage.  Tree branches were down all over our yard and up and down the block.  The neighbors started coming out to do the same and we all helped each other clear the street and our yards and get back to normal.

We started calling and texting friends to check in. Most people around town did not have power and, except for our small town, Cooper City, all of Broward County was under a boil water order.

There was no damage at either my parents’ or mother-in-law’s, but they did not get power back right away, 3 days and 4 days respectively, so we had company for a few more days.

We were all extremely lucky. Of course, those in the Keys and on the west coast took a much harder hit and will be rebuilding and recovering for a long time.  But, everyone, and I mean everyone, took Irma very seriously.  When family and friends from out of town called before and during the storm to check up on us (which was greatly appreciated) many asked why we didn’t evacuate.  First of all, we don’t live in an evacuation zone.  So, there is no reason to.  But also, I always say, where would we evacuate to?  This hurricane, in particular, was targeting the entire state.  Flights north were sold out.  There was no place to go.  Those who drove elsewhere in the state were hit anyway.  If you were on the road, you were in traffic.  The best answer was that we were prepared as best we could possibly have been.  And, now that it is over, we learned more and will be even better prepared the next time.  And there will be a next time.

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        Floridians are hurricane experts. We know how to prepare. We are always vigilant. But it has been 11 years since South Florida has gone through the drill. Maybe we have become lazy. I know my wife called me lazy on more than one occasion as Hurricane Matthew began to bear down on us. We knew it was out there more than a week in advance and we began listening to our favorite meteorologists (everybody in hurricane country has a favorite meteorologist). You can tell when they get serious when they start to raise their voices a little bit, when their jackets come off, when their ties are loosened, when their voices get a bit hoarse. These are all signs that the threat is real.

             Here, we were waking up for the second day of Rosh Hashanah on Tuesday. The cone of danger was clearly targeting us. My wife announced that we had to put gas in the cars immediately. The storm was still 2-3 days away. Off to services we went. She later put gas in her car. The 2:00 update had put Broward and Miami-Dade Counties under a Tropical Storm Watch, meaning within the next 48 hours we could possibly see tropical storm force winds. To seasoned veterans, that is an ordinary afternoon thunderstorm. But, Palm Beach County and north were under a Hurricane Watch. One small wobble, and the hurricane would be headed our way.

             Later that afternoon, I took my daughter to the airport to go back to New York. I assured my wife that I would gas up my car on the way home because the TV news shows were showing breaking news of long gas lines all over town. Of course, I did not fill up my car. When I got home from the airport, the 5:00 update was out. The Hurricane Watch had been extended southward to the Broward/Miami-Dade County line. We would likely be hit by a hurricane within 48 hours. Now, we had to plan. My wife’s first thought was that we had to run to the bank and withdraw as much cash as possible. I sat on the couch and waited for the Vice Presidential debate. That is where I was accused of being lazy. I told her that there would be cash in the ATM tomorrow and I didn’t understand why hoarding cash was necessary. But, that is what the TV people always tell us to do, so we do it. We discussed our preparedness plan. At some point Thursday, I would move the outdoor furniture in and close the shutters. We discussed where our important papers were. The office. That led to a discussion as to how safe the office is. Therefore, I was to either scan the papers or bring them home. The only papers of any value in the office is our insurance policy, which the insurance company has and I have the agent’s number but I won’t go into that with my wife.

             Wednesday morning, my alarm didn’t go off (am/pm problem Jerry Seinfeld) so we watched the 5:00 a.m. update at 5:45. We were now under a Hurricane Warning. That meant we were likely to experience hurricane force winds within 24 hours or less. Our plans had to be put in place within 12 hours. We discussed flash lights. We have many. Do we have batteries? We had not touched our hurricane kit in years. In fact, we had pilfered the batteries from the hurricane kit over the years. No batteries. What are we going to do? I would have to find more batteries. Frankly, when it gets dark, I would prefer just to go to sleep, but, for some reason, we need light. Off to work we went. I promised to stop for gas. My wife insisted that I would be stuck in a gas line for hours. The gas line at the gas station I stopped at was all of 2 cars. However, gas prices had jumped about 23 cents a gallon in the last 2 days. The gouging had begun.

             By 10:00, my wife’s office had announced they would close at 5 and would be closed Thursday and Friday. We decided to close Thursday and would see what happens Friday. I went out at lunch in search of D batteries. 4 stops later, no D’s to be found. Fortunately, I did find working lanterns with working D’s in our house before I left. Still need some more D’s for a couple more flash lights and lanterns if possible. But, at least we wouldn’t be totally in the dark when the power goes out.

             Shutters started going up at the office around 3:00. I decided to leave the office at 4:00 and start implementing our plan. My wife thoughtfully picked up steaks, burgers and hot dogs which we would put on the grill when the power goes out. Though we had lots of wine and whiskey at home, I stopped and bought a 12-pack of beer. Something about a hurricane makes me want beer. I think it is the heat that follows. Then, because there is no power, you have to drink it all before it gets warm. After Wilma in 2005, all the neighbors sat in front of our houses with our grills and beer and had a block party. Also, I made a mental note to ask my wife if she wanted to stock the freezer with ice cream. The first thing you want to eat when the power goes out is ice cream. Can’t have that spoil, right?

             I started my work at home at 4:45. It really isn’t too much work, but it was the first time I had to do it without the help of my kids, both now living in the northeast. I got started on the task long before my wife got home from work. The order of things to do is very specific. Start by closing the shutters that require a ladder. Done. Move outside furniture and trashcans inside, starting with the garage, leaving room to park 2 cars. Done. Continue by carefully stacking remaining outdoor furniture in living room (after carefully placing blankets and sheets on the floor). Done. Close remaining shutters that need to be closed from the outside and do so before it gets dark. Done. Squeeze the cars back in the garage. Done. Finally, close remaining shutters that are closed from the inside the house. Done. I was finished in under 2 hours with 3 bloody knuckles to show for it. Not bad.

             We would now be stuck in a dark house for the foreseeable future. Our plan for the evening? A couple of steaks, a bottle of wine or 2 and as many episodes of House of Cards as we could watch before the wine kicked in. Resolved not to watch forecast updates all night as hysteria would begin to kick in during the overnight broadcasts. 2 episodes later, and about 10 phone call interruptions from concerned friends and family, we were done. But one last thing to do – make sure we had books to read on our Kindles. Done.

             Thursday morning and the forecast had changed. Matthew was still bearing down on the coast, likely north of us, but still at Category 4 strength, so we could expect hurricane force had winds arriving sometime in the afternoon. But the cone had taken an ominous turn. The projected path suggested that the darn thing was aiming to take a second strike at us after the weekend. For some reason, the meteorologists weren’t focusing on this. They were too busy screaming at us to evacuate. Governor Scott was telling us that we were going to die if we didn’t do what he said. And I was looking for information about a potential second strike. If it came back, even at weaker strength, the damage would be much worse. I remember communities that have taken 2 hits in a relatively short time, usually from separate storms. The battering from the first storm was bad enough. But because of the initial damage, the second hit was usually devastating. Resources were thin and defenses were weak.

             But as the day progressed and we huddled in our fortress, nothing happened. Sure, it was windy and rainy, but we Floridians are used to wind and rain. The local stations were all in with breathless reports of scattered power outages and random trees down. Young, excited reporters were stationed on the beach interviewing brave souls who disregarded the Governor’s dire warnings and wanted to see the action first hand. Since there was no action happening locally, the local stations cut to Nassau which was experiencing a direct hit. Again, reporters had to stand outside to give us a live look at what “could” happen if we weren’t prepared. They showed us street flooding, downed power lines, a gas station that had suffered some damage. They cut to footage of Haiti which always gets hit and, because of its extreme poverty and lack of any infrastructure, suffers tremendous devastation. But locally, we were experiencing a true non-event.

             By 8:00, the Hurricane Warnings were finally down graded to Tropical Storm Warnings and South Floridians were declared to be “off the hook – this time”. The Space Coast, however, was now the clear target. My wife and I simply continued our House of Cards binge watch, and opened another bottle of wine. At some point, I tired and turned to Thursday Night Football and the Baseball Playoffs. We discussed plans for unwinding. In the morning, I would open up the downstairs shutters and we would wait to hear whether Matthew would return before opening the upstairs shutters and putting the patio furniture back outside.

             And so it was. I awoke before sunrise and spent 15 minutes opening the shutters. The yard had some leaves and downed branches, but no more than we would following a typical summer thunderstorm. By 8:00, our lawn service was out cutting the grass. Life was back to normal. I received word from the office that the shutters were down and we would be open and we all returned to work. My wife got an extra day off as her place of employment previously announced the 2-day closure.

             What did we learn from this experience? I hear many people expressing frustration. They are frustrated that Matthew did not hit after they went through all of the preparations and after all the stress and excitement. Are they nuts? Had the storm hit South Florida, insurance companies predicted a potential $200 billion loss. This was a Category 4 storm. Sorry for the inconvenience, but a miss is a good thing. What we learned is that we have not lost our hurricane preparedness skills. It is not a bad thing to test them out once in a while as we were certainly out of practice. I would gladly do this every year only to have the storm veer off at the last minute each time. We have seen our community suffer tremendously in the past and we have seen too many communities suffer each year. So the lesson is always be prepared, always be diligent. And most importantly, keep your spirits up. Once you know you have done everything to keep your family and your property safe and enjoy the time together.

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        Some things are quite predictable. The Cubs will swoon in June. The stock market will drop on seemingly irrelevant factors. And hurricanes will wander the Atlantic and the Gulf of Mexico; regularly threatening the Continental US.

         While the weather person alarms for tropical storms and potential hurricanes are expected, the path of, and the potential havoc and destruction wrought by hurricanes and tropical storms are not quite so predictable. The record-setting number of hurricanes in 2004 far exceeded any predictions.  Katrina devastating New Orleans and its residents – well, that was predicted, but who could have guessed that FEMA would have been proven to so inept at its basic function?

             During the past decade, hurricanes have devastated Haiti and other Caribbean islands. Regardless of the impact of climate change on the strength of hurricanes, building and property owners may suffer serious damage and property loss from wind and rain even from a more moderate storm. Wilma crossing the state and extensive damage far was in excess of any predictions for a Category 1 storm, rendering 51,000 residential units in Palm Beach County, Florida at least temporarily uninhabitable.

             Dr. Philip J. Klotzbach of the Tropical Meteorology Project at the Department of Atmospheric Science at Colorado State University recently updated the 2016 Atlantic cyclone activity forecast in the “Extended Range Forecast Of Atlantic Seasonal Hurricane Activity And U.S. Landfall Strike Probability For 2016” on June 1, 2016 to provide for an average number of potential hurricanes and tropical storms in the Atlantic basin. The predictions for this hurricane season:

 Named Storms:                        12

Named Storm Days:                50

Hurricanes:                               5

Hurricane Days:                        20

Major Hurricanes:                     2

Major Hurricane Days: 4.4

       Of course, if few or none of these storms make landfall, the sheer number of hurricanes becomes less important. Can landfall be predicted? Predicting landfall on the continental United States cannot be determined by El Niño patterns, water temperature or the Long Island Medium.  The late Dr. William M. Gray had this to say based on historical patterns:

         The 2006 season was only the 12th year since 1945 that we have witnessed no hurricane landfalls along the United States coastline.  Since 1945, we have had only two consecutive-year periods where there were no hurricane landfalls.  The The dearth of landfalls in 2000 and 2001 was especially impressive considering that both of these seasons had above-average hurricane activity.  From Hurricane Irene in 1999 to Hurricane Lili in 2002, 21 consecutive hurricanes developed in the Atlantic basin without a single U.S. landfall. [see Extended Range Forecast Of Atlantic Seasonal Hurricane Activity And U.S. Landfall Strike Probability For 2007]

        If I was a Vegas odds maker, I would not want to take the bet for no hurricane landfalls in 2016. Historical patterns seem as good as any in addressing hurricane likelihood. While not a meteorologist. I grew up in Miami in the 1960s, which saw quite a few serious storms making landfall in Florida.  According to hurricane expert Dr. Gray, we should see an increase in storm activity through 2020. The storms are expected to cause 5 to 10 times the amount of damage on the Gulf and Atlantic Coasts than previously experienced, due to the massive increase in population and development along these coastlines:

       The hurricane activity of the next 20 years should resemble the period that began in the late 1920s and lasted through the 1940s. The increase is due to higher salinity content in the Atlantic Ocean, which alters its currents and increases average ocean temperatures, fueling more storms. Gray emphasizes that this is a cyclical trend and has nothing to do with global warming (CNN, April 22, 2000). [see Drought Cycles and Hurricane Cycles; CBS Hot Air Watch, Cooler Heads Coalition, May 17, 2000]

       Predicting climate and weather is fraught with difficulty. But given the long-term evidence, there is only one appropriate course of action, and that is preparation. If storm events cannot be predicted with accuracy, we must assume the worst case, and implement realistic and beneficial precautions based on the storm impacts of the recent three years.

        What can those in the real estate industry do to prepare and what can they do to help building owners, contractors and other customers take the appropriate precautions?

        As a lawyer with significant experience in construction, we have seen a growing number of insurance companies denying coverage under windstorm policies for design and construction defects, or maintenance failures. For example, a client’s apartment building was damaged by water vapor, being driven by 80 mile per hour winds, penetrating the window systems and pooling inside. An expensive post-storm forensic analysis showed that the windows were properly designed, manufactured and installed. After a year-long battle, the insurance company settled. A way to address the post-storm expense is with a pre-storm season building analysis showing code compliance and proper maintenance. This may not only reduce the likelihood of a post-storm dispute, it may be a key factor in obtaining windstorm insurance at all. Working with properly licensed professionals, building owners can reduce both the cost to collect under insurance and reduce the time for repair.

 What is important to preparation? A laundry list may spark some ideas:

In the multifamily rental or commercial rental setting:

  • Preemptive testing and proof of installation of windows, flashing and other leak prone components
  • Who is responsible to install shutters?
    • Is there a right to rent abatement in a commercial lease? If not, how can the tenant keep operating?
    • Are there termination rights for extended closure? If not what is the tenant’s business plan?
    • What happens to cleanup if there is an interruption of utilities?
    • Who is responsible to repair water damage?
    • Who is responsible for mold remediation? Does the landlord have a team under retainer?
    • Insurance coverages:
      • Rental loss
      • Mold
      • Windstorm
      • Gaps?
    • HVAC maintenance and cleanup
    • Property Manager responsibility
    • Are upgrades and deductibles a CAM Cost?

The condominium setting adds a few twists the previous list:

    • Preemptive testing and proof of installation of windows, flashing and other leak prone components
      • Failure of elevators/evacuation of residents
      • Interruption of utilities, including water supply
      • Who is responsible to repair water damage?
      • Who is responsible for mold remediation?
      • Who is responsible for Common Element repair and cleanup? Mandatory access rights
        • Property Manager responsibility
        • What happens if the Unit Owner fails to repair? Is there a potential cross-contamination risk?
        • Are Unit Owners required by the condominium documents to obtain insurance?
        • How are you to be paid if there are (and there will be) delays in insurance payment/Special Assessments?
        • Snowbirds? Contact addresses
        • Reminders of responsibilities before Hurricane Season/Special Needs Occupants
        • Securing of Limited Common Elements – balconies, HVAC, etc.
        • Identify contact person with impending storm
        • Pets?

 

Projects under construction present many legal concerns:

    • Disclaimers regarding hurricane impacts and design criteria
    • Specifications regarding wind and water resistance
    • Preemptive testing and proof of installation of windows, flashing and other leak prone components
    • Responsibility for securing of project during construction
    • Who is responsible for dryout?
    • Who is responsible for mold remediation?
    • Who pays?

 

Some special pre-storm preventative measures:

  • Inspect existing conditions for cracks, roof membrane, loose roof tiles, bad flashing, caulking issues
  • Check window conditions
  • Preventative testing?
  • Test fit shutters
  • Brace doors – including rolling doors
  • Trees and landscape hurricane prune
  • Antennas and masts
  • Generator risks
  • Commercial/Industrial Tenants with hazardous chemicals stored – pollution insurance coverage
  • Availability of workers to install shutters and protective equipment
  • Code compliance issues with older construction and insurance coverage v. code requirements
  • Dryout contractors engaged in advance?
  • Senior projects, health care facilities and evacuation plans
  • Special problems – EIFS and exterior drywall buildings

 

        While some of the checklist recommendations cannot be performed other than by a licensed contractor or engineer, a lawyer with practical experience in the construction industry can advise the building owner, landlord, developer or contractor in preparation and response to storm events.

           As a former Scout, the motto was “Be Prepared”. The same philosophy applies to the real estate and construction industries as well. By working in a team with attorneys, engineers, and other building experts, the members of both industries may reduce the risk of serious injury or property damage, and loss of income.

            No discussion of tropical weather should be concluded without extending our condolences to the family, friends and colleagues of Dr. William M. Gray, who is quoted in this article and was the dean of hurricane meteorologists for more than 60 years. Dr. Gray passed away on April 16, 2016. If you grew up in South Florida as did I, you cannot help but remember Dr. Gray’s sage and sane advice as storms approached.

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