Robert Styduhar

Friday, 28 March 2003 06:11

Mold liability

Mold litigation is suddenly big news.

It's been covered by the media in stories headlined, "The Hidden Killer in Your Basement," "Is Your Office Killing You?" and "Beware of Toxic Mold."

Hard to believe? Not for the insurance company that paid a Texas family a jury award of $20 million for personal injuries and property damage associated with the substance. Or for the landlord who paid a jury award of $1.8 million to a tenant for health problems allegedly caused by mold.

And not for the contractors and insurance companies being sued by celebrities including Ed McMahon and Erin Brockovich, who dismantled her mold-damaged home on television's "48 Hours."

Why this sudden focus? One reason is recent knowledge about mold as a source of allergies. According to the Ohio Department of Health, 10 percent of people may be susceptible to mold allergies.

The other reason is that people are spending more time indoors in closed environments.

What is mold?

Molds are neither plants nor animals but multicellular organisms known as fungi. They are found almost anywhere moisture and oxygen are present.

Molds reproduce by making thousands of microscopic spores that can be easily inhaled. In the home, mold can grow on wood, wallboard, paper, carpet, foods, insulation or other material. Whenever excessive moisture accumulates, mold growth can occur.

If left unchecked, molds will digest whatever they are growing on, destroying the material and often creating unpleasant odors. Molds can also cause allergic reactions, asthma attacks or more harmful effects.

Studies of toxic health effects from mold have been inconclusive. As a result, the rise in the number of lawsuits is causing the medical -- and legal -- community to focus on mold as a potential toxin.

What can cause a mold problem?

Mold problems are on the rise because of construction techniques that are designed to make buildings more air-tight to save energy. This can cause moisture to build up -- a precursor to mold growth.

Water leaks and collections of moisture are the primary danger signs of mold infestation. Blocked gutters, leaking plumbing, defective roofs, flooding and an absence of drains are among the most common causes of mold infestation.

Ventilation system manufacturers are responding by developing changes in design that draw in more outdoor air to eliminate conditions that can lead to mold growth.

Control moisture to prevent mold growth

Although the medical community is still unsure about the health effects of mold, it can be a legal problem regardless of the scientific data. Moreover, no government agency has yet established "safe" levels for molds.

Because of this uncertainty, your best course of action is to try to prevent conditions that cause mold growth. Prevention should focus on moisture control -- repair leaks as soon as possible, remove or dry out wet organic materials, keep roof vents open, empty drip pans regularly and vent dryers to the outside.

Sometimes, complete removal and replacement of materials with mold growth is necessary. Take care when selecting a contractor to remediate mold problems. Most states haven't adopted licensing requirements, so select a contractor with experience in industrial hygiene and surface sampling techniques.

Finally, there is the issue of insurance coverage for repair of mold damage. Some insurance companies have denied coverage because of policy language requiring that damage be caused by a "physical injury." Whether mold infestation is a physical injury under these policies is the subject of several pending lawsuits.

In the meantime, business and property owners should review their insurance policies to determine whether mold damage and claims for personal injury from exposure to molds are covered. Robert J. Styduhar is a partner in the Columbus office of Vorys, Sater, Seymour and Pease LLP, where he practices environmental and land use law. He can be reached at (614) 464-8299 or by visiting www.vssp.com.