A child was injured by a tile falling from a building – an insurance analysis of the case
Apr 13, 2022
From: Omri Nissany, Civil Engineer and Licensed Insurance Agent
Several years ago, a 5-year-old boy playing on the lawn of an apartment building was seriously injured when a marble tile that broke off from the eighth floor hit him directly in the head (!). Officials from the municipality's engineering department, including the city engineer, quickly arrived at the scene to check whether there was a danger of more tiles breaking off, and the contractor was summoned for questioning by the police. An inquiry with the neighbors revealed that this was not the first time tiles had fallen from the building.
From: Omri Nissany, Civil Engineer and Licensed Insurance Agent
Several years ago, a 5-year-old boy playing on the lawn of an apartment building was seriously injured when a marble tile that broke off from the eighth floor hit him directly in the head (!). Officials from the municipality's engineering department, including the city engineer, quickly arrived at the scene to check whether there was a danger of more tiles breaking off, and the contractor was summoned for questioning by the police. An inquiry with the neighbors revealed that this was not the first time tiles had fallen from the building.
A dangerous "domino effect"
The application of marble tile adhesive is usually done using the wet method using layers of mortar and cement, plus drilling holes that are used to pass a kind of "wire mesh" of galvanized iron, approximately 4 mm thick. Careless performance may create a situation of future danger. Among other things, due to the failure to use galvanized iron or the application of poor-quality mortar. There is also a "dry" cladding method that usually characterizes buildings that are coated with heavy, large tiles that are threaded into metal rails.
In most cases, the tiles are assembled while supporting each other, so that the fall of one could create a dangerous "domino effect." Many in the industry are aware of the challenge of properly installing marble tile cladding, as it is a job that is somewhat difficult to supervise and control. It is not easy to inspect each and every tile that is glued to the building, and the quality of the connection and adhesion depends (literally) on the hands of workers, more or less skilled.
The application of marble tile adhesive is usually done using the wet method using layers of mortar and cement, plus drilling holes that are used to pass a kind of "wire mesh" of galvanized iron, approximately 4 mm thick. Careless performance may create a situation of future danger. Among other things, due to the failure to use galvanized iron or the application of poor-quality mortar. There is also a "dry" cladding method that usually characterizes buildings that are coated with heavy, large tiles that are threaded into metal rails.
In most cases, the tiles are assembled while supporting each other, so that the fall of one could create a dangerous "domino effect." Many in the industry are aware of the challenge of properly installing marble tile cladding, as it is a job that is somewhat difficult to supervise and control. It is not easy to inspect each and every tile that is glued to the building, and the quality of the connection and adhesion depends (literally) on the hands of workers, more or less skilled.
The unfortunate incident was and still is an important warning light for us, both in terms of the scope of risks that can arise from construction work even years after its completion, and regarding the level of responsibility of the operators, even after a significant period of time has passed.
In the specific incident mentioned above, the accident led to the opening of a criminal investigation against a long list of parties, not just the contractor. Among other things, subcontractors who worked on the cladding of the building, the designers, suppliers, and so on were investigated. All of this, of course, is in addition to the civil claim for compensation for the child.
Both a tort claim and a criminal proceeding
A marble tile falling from a delivered building is a "construction defect" that emphasizes the importance of maintaining "product liability insurance" over the years. That is, insurance with "retroactive" coverage from the beginning of the company's operations.
Please note that product liability insurance is a " Claims Made" type policy. In order for the insured to be eligible for insurance coverage, he or she must have valid insurance both at the time the work was performed (installation of the cladding) and at the time the accident occurred (the tile falling off the wall).
A responsible contracting company that takes care of a proper insurance package should hold a product liability insurance policy that retroactively covers its activities and ensure that it is renewed from year to year. This includes renewal in a RUN OFF format after retirement or closing the business, since the date of filing the claim does not depend on the existence of business activity at the current time .
Effective product liability insurance: retroactive and ongoing
Product liability insurance comes into effect after delivery of part of the structure or full delivery of the project. Please note that contractor work insurance – however broad it may be – does not provide coverage for damages resulting from construction defects, but only certain coverage for maintenance work after delivery, for a period specified in the policy (usually between 12-24 months).
Building is included in Israeli legislation according to the Liability for Defective Products Law, 1980 , and it is important to ensure the existence of comprehensive and professional product liability insurance, including with adequate insurance amounts.
Be aware that claims related to product liability can escalate to huge sums of millions of shekels. This is in addition to other aspects such as dealing with civil and criminal law and the high expenses involved.
Product liability claims are sometimes filed many years after the project has been delivered, and this is even more pronounced when minors are involved, such as the incident we described above, in which the victim was a 5-year-old child.
According to Section 10 of the Limitation Law, 1958, "In calculating the limitation period, the time during which the plaintiff has not yet reached the age of eighteen shall not be included " (emphasis not in the original). That is, a claim in the case of bodily injury to a minor can be filed until the child reaches the age of 25.
Product liability insurance
The tragic case illustrates the high compensation rates that can be used to establish personal injury claims even in cases of injury to a third party resulting from construction defects. According to Israeli law, after proving "liability" (responsibility for damage resulting from negligence), compensation is awarded according to the principle of " restoration of the situation to its former state ." This is a legal rule that states that the injured party is entitled to compensation that would put them - to the extent possible - in the same position they would have been in had the injury not occurred.
Major damages in serious tort claims also include compensation for future expenses and loss of income due to impairment of earning capacity. If a young boy is injured in a way that prevents him from working and he becomes dependent on others, the compensation will include both medical expenses and loss of income from the date of the injury until the date the injured person was supposed to retire (including pension rights). Personal injury claims in cases involving children frequently climb to millions of shekels.
The high compensation amounts in light of the passage of the lost years
Another important issue is the level of liability in Israeli law. Damage claims in construction work are often filed against a number of parties.
The proceedings do not focus only on the operating contractor or developer. The lawsuit will often also be filed against subcontractors who were involved in the work, planners, engineers, foremen, external inspectors, and even local authorities and institutional bodies.
If the injured party is found entitled to compensation, liability may be imposed on all parties in varying degrees or jointly (jointly and severally). Of course, it may be determined that some of the parties were not negligent in their work and should not be held liable for compensation.
Every professional in the construction industry must ensure that they are insured with a quality policy that is appropriate for their field of activity, including retroactive and ongoing coverage for years.
Since even professional entities who were not negligent may find themselves on the defendant's bench, and since the very filing of the claim and the management of the legal process entail financial expenses, it is necessary to ensure that the insurance provides coverage for legal expenses. That is, not only in the event of a compensation ruling, but also for the actual management of the legal proceedings.
In a sidebar, we emphasize that if it is a serious case that results in criminal proceedings, there are insurance policies with appropriate coverage that will provide coverage for the cost of employing a criminal lawyer specializing in the construction industry (on the complexity of matters, since not every defense attorney is familiar with the ins and outs of the field in terms of liability, engineering, practice, etc.).
Responsible? Not just the contractor or developer
In conclusion
The serious incident highlights the importance of having a product liability policy in the construction industry. Contractors, developers and planners should ensure that they are insured under the aforementioned policy and that the contract with the insurance company includes clauses relevant to their field of activity with adequate insurance amounts.
It is advisable to purchase product liability insurance with the help of an insurance agency that specializes specifically in the construction industry. Remember that product liability insurance for contractors and planners involves unique nuances that require in-depth familiarity with the construction industry and its various risks.
It is also recommended to read about professional liability insurance for contractors.
The serious incident highlights the importance of having a product liability policy in the construction industry. Contractors, developers and planners should ensure that they are insured under the aforementioned policy and that the contract with the insurance company includes clauses relevant to their field of activity with adequate insurance amounts.
It is advisable to purchase product liability insurance with the help of an insurance agency that specializes specifically in the construction industry. Remember that product liability insurance for contractors and planners involves unique nuances that require in-depth familiarity with the construction industry and its various risks.
It is also recommended to read about professional liability insurance for contractors.
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