W. Va. Code R. § 199-1-5

Current through Register Vol. XLI, No. 45, November 8, 2024

Section 199-1-5 - Blasting Damage Claim

5.1. Damage to Surface Structures. -- A claim of damage to surface structures from blasting will be the result of one or more of the following:

5.1.a. Fly Rock. -- Fly rock damage is based on the presence of debris from the blast site and the presence of impact damage;

5.1.b. Air Blast. -- Air blast damage is characterized by broken or cracked window glass; and

5.1.c. Blasting Vibration Damage. -- Blasting vibration damage is investigated by experienced and specially trained personnel to accurately determine the presence of such damage. Examples are explained in, but not limited to, the American Insurance Association publication, Blasting Damage, A Guide for Adjusters and Engineers.

5.2. Filing a Claim.

5.2.a. It is the responsibility of the property owner to notify the Secretary of the alleged blasting damage. A certified inspector will be assigned to conduct a field investigation to determine the initial merit of the damage claim. An investigation by a certified inspector will include the following:

5.2.a.1. The inspector will contact property owner within one (1) business day of receiving the complaint to schedule a visit to the property where the alleged blasting damage occurred and interview the property owner;

5.2.a.2. The inspector will visit the blasting site to determine if the operator and blaster are in compliance with state blasting requirements; and

5.2.a.3. The inspector will make a written report on the investigation that describes the nature and extent of the alleged damage, taking into consideration the condition of the structure, observed defects, or pre-existing damage that is accurately indicated on a pre-blast survey, conditions of the structure that existed where there has been no blasting conducted by the operator, or other reliable indicators that the alleged damage actually pre-dated the blasting by the operator. The inspector will make one of the following initial determinations and notify the claims administrator, make a recommendation on the merit of the claim, and supply such information that the claims administrator needs to sufficiently document the claim:

5.2.a.3.A. There is merit that blasting caused the alleged damage.

5.2.a.3.B. There is no merit that blasting caused the alleged damage.

5.2.a.3.C. The determination of merit as to whether blasting caused or did not cause the alleged damage cannot be made.

5.2.a.4. The inspector will inform the property owner of the following four resolution options available for the alleged blasting damage:

5.2.a.4.A. Withdraw the claim, with no further action required by the Secretary;

5.2.a.4.B. File a claim with the operator or the operator's general liability insurance carrier;

5.2.a.4.C. File a claim with the homeowner's insurance carrier; or

5.2.a.4.D. Submit to the Secretary's claims process.

5.2.a.5. If the property owner declines part 5.2.a.4.D of this rule, the Secretary's involvement will be concluded.

5.2.a.6. Once a determination is made as to the merit of a claim by the inspector, the Secretary shall offer the claimant and the permittee the opportunity to meet to attempt to resolve the issue.

5.3. The claims administrator will be responsible for the following:

5.3.a. Sending notice to the respective operator of the damage claim;

5.3.b. Making an initial assignment of the damage claim to a qualified claims adjuster within one (1) business day;

5.3.c. Providing the relevant claims information to the arbitrator assigned to that claim;

5.3.d. Making a final determination on the merit and loss value of the claim; and

5.3.e. Providing a complete report of the adjusters and the administrators findings to the Secretary the claimant and the respective operator.

5.4. The adjuster will be responsible for the following:

5.4.a. Contacting the property owner and physically visiting the site of the alleged blasting damage within three (3) business days of the initial assignment;

5.4.b. Documenting the alleged blasting damage through accepted methods such as photographs, video tapes, written descriptions, and diagrams;

5.4.c. Reviewing all available supporting information such as blasting logs, seismograph records and pre-blasting surveys;

5.4.d. Making a determination of the need for additional assistance from structural engineers, building contractors and blasting consultants. The claims administrator will be the approving authority for the assignment of such specialists;

5.4.e. Making a preliminary determination as to the merit of the blasting damage claim; and

5.4.f. Making an initial monetary determination of the loss value of the respective claim.

5.4.f.1. The adjuster will use the following ratings in the determination of the merit of the alleged blasting damage claim:

5.4.f.1.A. Caused by blasting;

5.4.f.1.B. Probably caused by blasting;

5.4.f.1.C. Possibly caused by blasting;

5.4.f.1.D. Probably not caused by blasting; or

5.4.f.1.E. Not caused by blasting.

5.4.f.2. The merit-rating factors include, but are not limited to the following:

5.4.f.2.A. The claimant is the property owner;

5.4.f.2.B. Correlation of alleged damage event to a specific blast and mine;

5.4.f.2.C. Correlation of alleged damage event to a large, unusual or problem shot;

5.4.f.2.D. Proximity to the blast site;

5.4.f.2.E. Timeliness of first notice of loss;

5.4.f.2.F. Damage that is not indicated on the pre-blast survey;

5.4.f.2.G. Lack of any other issues or grievances besides blasting;

5.4.f.2.H. Age and physical condition of the structure in question;

5.4.f.2.I. Presence of seismographic records close to the structure in question;

5.4.f.2.J. History of previous blasting in the immediate area;

5.4.f.2.K. Property that has been undermined; and

5.4.f.2.L. An area with a history of geological abnormalities.

5.4.g. Recommendations as to the equitable resolution of the claim; and

5.4.h. Completing report and sending to the claims administrator.

W. Va. Code R. § 199-1-5