TOXIC MOLD LITIGATION

TOXIC MOLD LITIGATION
by Douglas J. Shelton

In the past couple of years there has been a multitude of lawsuits filed concerning the seriousness of mold as an indoor health hazard. There are several primary areas of mold litigation: FIRST PARTY/HOMEOWNER CLAIMS are brought by insured homeowners or others against their own insurance carriers under the following types of insurance policies: Homeowners, Business Owners, Dweller's (Renter's), and others. Most often these are claims for water damage which resulted in mold growth. Water damage can occur from frozen and broken water pipes, flooding, rain, leaks, and surface water, as well as water damage from putting out fires. Some of these losses are covered by the insurance policy; some are not. If the water damage is determined to be the result of a covered loss, the resultant damage, mold, is probably also covered. The primary concern is to determine the source of the moisture. Often this will require an inspection by a structural engineer. Typical sources are roof leaks, foundation cracks, heat/air-conditioning systems, appliance leaks. etc. Claims for mold, per se, have been excluded by the contract or by endorsement in most of these policies. However, if the underlying water damage claim is covered, many times the mold can be covered as well.

FAILURE TO DISCLOSE claims are brought by purchasers of a residential home against the sellers. The Oklahoma Residential Property Condition Disclosure Act states that a seller of property located in this state must deliver to the purchaser of such property a written property disclosure statement. The disclosure statement must include disclosures of numerous listed potential "defects" in the home. Failure on the part of the seller to accurately and fully disclose all such defects can come to light when a problem with mold arises. The buyer may then file an action against the seller for violation of the Oklahoma Residential Property Condition Disclosure Act. Often, the buyer will also name the real estate agent, real estate agency, home inspectors, and any others involved in the sale of the home as defendants.

CONSTRUCTION DEFECT claims are brought against builders and/or contractors for construction defects. Problems with mold can begin during the construction of a house or building. Problems can also arise stemming from home repair or improvements, such as room additions. Shoddy workmanship such as poorly constructed doorways or windows, uninsulated pipes, unwired or improperly wired appliances, dripping faucets, or defective products can cause chronic water problems that result in mold.

PURSUING A MOLD LITIGATION CLAIM

There are a number of steps involved in determining whether a mold claim can be pursued.

1. Identify and repair the source of the moisture. Sometimes the water source is obvious, such as when a roof leak is involved. However, many times when the water intrusion is not obvious, it will require the assistance of a structural engineer or architect to determine whether there are foundation, roof, or design problems that are allowing moisture into the home. The repairs will need to be done by a contractor, plumber, roofer, french drain specialist, landscaper, brick mason, or a combination thereof.

2. Air-Quality Testing/Interpretation. Mold occurs naturally in the environment. However, it is the excessive growth of these water-loving fungi which can cause problems. Therefore, a Certified Industrial Hygienist (CIH) should be hired to test not only for the presence and identification of mold, but also to determine the balance between the amount of mold spores found in the air outside the house, as compared to the amount found inside the house. Finally, the CIH will also furnish a "Scope of Work" outlining the steps necessary to properly remediate the building.

3. Remediation. It may be necessary to obtain estimates from a company which specializes in mold cleanup. There are a variety of methods available for remediating mold damage to buildings and furnishings. Cleanup may consist of wiping or scrubbing with an EPA approved solution, using a HEPA Vacuum, and removal and discarding of damaged materials. Upon completion of the remediation, it will be necessary for the CIH to retest the indoor air quality of the home to ensure the offending mold spores have been effectively removed.

4. Review of Documents. Depending upon the type of case, it will be necessary to gather and review all relevant documents. These might include insurance policies (if making a claim against your own insurance company); all documents involved in the sale/purchase of a home (in a claim involving Failure to Disclose); all contracts, proposals, estimates, etc. from contractors (in a claim involving construction defects). In addition, it will be helpful to have photographs of the mold, source(s) of moisture, and resulting water damage.

Once the water source has been determined, repair estimates obtained, initial mold testing performed, and there has been a thorough review of all relevant documents to determine the appropriate action to be taken, a mold claim may be made, if warranted, against the appropriate entities.

Doug Shelton is an attorney in Oklahoma City. He practices in the area of civil litigation, including building defects and mold litigation. He may be reached at 405-631-0833.