Mold has been around since the beginning of time, but never has there been such a frenzy of media coverage, claims, litigation and concern about mold and its affects on our buildings and on our health.
Even though millions of types of mold have been around forever, the types we are currently seeing proliferate in our buildings, are different in that they are destructive fungi. The molds, in some cases, are actually eating away at the structure of the building and can compromise the integrity of a building in a very short time. Along with the concerns of property damage, there is also concern for personal injury since many of these molds, even if not specifically “toxic mold” or “black mold” do have health consequences associated with their presence. No one has set specific standards on mold exposure in relationship to health, however, it appears that everyone agrees that certain kinds of mold exposure can affect ones health and present special problems for some children, the elderly and those who have compromised immune systems. There are no current comprehensive studies to lead one through the connections between mold and health and only time will tell how these issues are resolved.
After a problem is discovered, there are important decisions to be made . . .
Mold growth is the result of water intrusion and the inability of the structure to “air” itself dry and/or the growth of mold is the result of improper clean up of water intrusion. The rampant growth of mold has also been associated with the building materials we now use in most construction and the methods we have employed in construction. We are building to higher energy codes which results in less air flow through walls to keep materials dry. When the building materials become wet and have no way of drying out, the mold has a perfect atmosphere for growth. Some building owners do not discover the problems until the mold is proliferating out around cracks or around windows and other areas.
The current frenzy over mold has caused numerous insurance claims and has generated significant litigation in terms of the number of cases and the amount of damages being awarded in some cases around the country. No one is exempt.
Insurance companies are being sued over coverage issues, building owners are being sued by tenants for constructive eviction, abatement of rent and personal injuries, and brokers are being sued for misrepresentation or failure to disclose. Employees are suing employers for personal injuries and negligence. Commercial property owners are suing HVAC maintenance companies and, of course, building and general contractors are being sued under numerous theories, including construction defects, breach of contract and breach of warranties and the list goes on and on. The potential liability for property damage, remediation, and personal injury can reach well into the millions even on residential property.
All the attention and action has created significant concern over how to protect yourself and your property even before any concerns are known or have been raised. How to protect yourself somewhat depends upon who you are, but in most cases, insurance should be a number one concern. Is there coverage in the event of a claim against you, or your company, and, does your insurance cover you if you have a personal claim related to you or your business? Insurance coverage issues are still developing in the area of mold claims. Some insurance companies have attempted to exclude coverage under various theories including an environmental exclusion. Most of these defenses have not been successful to date which has led to the insurance companies taking steps to specifically exclude mold claims for property damage and personal injury claims under their policies.
After a problem is discovered, there are important decisions to be made early on in relationship to:
* the notice to potential parties who may be liable,
* how to tender the claims to insurance carriers,
* how to preserve evidence in the event that litigation is necessary later, and
* who to hire and how properly to clean up the problem to avoid future costs and liability.
The key is to use the right consultants on the job. There are many contractors who are attempting to clean up, but lack experience and knowledge on mold issues to properly remediate the mold. Testing is required before and after remediation and the property owner should have a written plan for remediation, request references and obtain a warranty if possible.
Since the consequences of mold growth can result in both property damage and personal injury claims, one must be able to chart a course early on to provide the best possible outcome. The sequence and timing of the tender to the insurance company, the investigation, and the clean up is critical. Additionally, the right advice from experienced remediation experts and testing companies is imperative.
If you have discovered mold growth in your residential or commercial building, or if you have questions or issues on mold growth and how to properly proceed, give us a call to help you work through the issues, to move toward a resolution of the problem and not create additional problems and expenses.
Joan M. Quade is the Practice Group Manager of the Barna, Guzy & Steffen litigation department in Coon Rapids, MN. For any questions regarding mold – a “growing” problem, contact Joan at (763) 783-5138 or by e-mail: email@example.com.