Masonry Magazine March 2004 Page. 60
Legal Issues
The New York City Department of Health & Mental Hygiene's "Guidelines on Assessment and Remediation of Fungi in Indoor Environments" can be found at www.nyc.gov/html/doh/html/epi/moldrpt1.html.
The consensus of expert opinion is that the easiest way to reduce the growth of mold in buildings is to prevent water intrusion and reduce indoor humidity. If mold continues to flourish, then recommended remediation measures range from installing more dehumidifiers, to cleaning affected surfaces (small area option), to removal of wall and flooring surfaces (large area, extensive contamination). The web sites referenced earlier can provide a more thorough discussion of remediation options.
Increasing Mold Claims
THE NUMBER of mold-related lawsuits nationwide is now in excess of 10,000, and is predicted to reach 50,000 in several years. Why? There are various reasons. First, there is a growing belief that well-intentioned efforts to make buildings more energy efficient and air-tight have contributed to a buildup of indoor air contaminants and moisture. Thus, while improved technology reduces costs to heat and cool a building, some undesired effects may also arise. Second, some argue that certain building construction practices contribute to water intrusion (eg., poor sequencing of work, lack of adequate flashing, sealant, etc.). Third, design flaws in certain building products (eg, windows with inadequate drainage) also permit water to penetrate into wall cavities, and once there, some products (e.g., barrier EIFS) may prevent that water from exiting the building wall.
Apart from construction-related issues, the increase in mold claims is attributable to the combination of significant print and electronic media publicity, increased advertising by lawyers and mold testing firms, substantial jury awards in several cases, and general lack of understanding about mold by many unsuspecting building occupants. As an example of the growing focus upon mold, a Google search for the word "mold" yields over 3.5 million results. As for the high jury awards, most have arisen in homeowner disputes with their insurers who refused to pay for the cost of mold remediation in their insured's home. Thereafter, the insurers were sued for bad faith, and juries awarded multi-million dollar verdicts. This has led only to further publicity about mold, and an increased desire by many insurers to exclude coverage for mold-related claims.
What Should You Do
THE MOLD "CRISIS" is not going away soon, but you can take various steps to reduce your liability exposure. First, research the mold issue, using the web site links referenced earlier or other credible sources. Learn more about what mold is and what it can do.
Second, as you are involved in construction activities, be alert to water intrusion problems. Your crewmembers and other trades on-site should be coordinated to minimize the exposure of interior building materials to the elements. Focus on proper sequencing of work and selection of building products designed to prevent water intrusion. Secure the building envelope as soon as practicable, and inspect for proper sealant, flashing and points of water entry. If elevated moisture is detected, take prompt measures to eliminate it.
Third, educate your employees about mold issues and implement a plan so that any complaints about water intrusion or mold are reported immediately to a competent decision-maker for appropriate, timely response.
Fourth, carefully examine your insurance coverage. Many liability policies now exclude claims related to mold. Further, some insurers decline coverage for mold claims based upon "absolute pollution" and other policy exclusions. If you are the target of a mold claim, place your insurer on notice immediately of such claim; you can battle the coverage issues later. Notification delay may result in a declination of coverage.
Fifth, in reviewing your construction contracts, seek to protect yourself through indemnification provisions whereby your potential liability may be transferred to others involved in the design, construction or maintenance of a building.
Finally, defend mold claims aggressively, hopefully through counsel engaged by your insurer. While there is considerable adverse publicity about mold, the reality is that it is medically difficult to prove causation of many mold-related personal injuries. Many factors wholly unrelated to mold may well cause a claimant's alleged injuries. A truly viable mold personal injury claim can be found at www.masoncontractors.org.