|
Legal Liability
for Mold Contamination
What
is the legal liability for
mold
contamination? Whether you are a tenant or
a landlord, a real estate buyer or seller, a new home buyer or a home
builder, a real estate agency client or a realtor or agent, borrower or
lender, or an insured party or an insurance company, if mold contamination
should be discovered in a real estate property [residential or commercial]
in which you are or were involved, there are a large number of powerful
causes of action [lawsuit] available to a plaintiff, including but not
limited to:
Negligence, the most common cause
of action asserted for mold contamination; Strict liability [especially
against new home builders]; Breach of warranties against builders,
sellers, and landlords; Constructive eviction [against landlords]; Failure
to disclose in the sale or rental of property; Breach of contract;
Fraud; Violations of unfair competition and consumer protection laws;
Violations of professional licensing laws; Workers’ compensation
[against employers]; and Violations of the Americans with Disabilities
Act; violation of federal and state air pollution and indoor air quality (iaq)
laws and regulations.
The
above grounds for
mold
contamination lawsuits (environmental law), plus information on
available compensatory and punitive damages, and recent court decisions on
liability for
mold
contamination are explained in Phillip Fry’s new book
Do it yourself Mold
Prevention, Inspection, Remediation, & Testing Guide,
$49.00 send through EMAIL ATTACHMENT only.
Send your mold questions to
mold expert Mr. Phillip Fry:
envirodangers@yahoo.com for free mold help.
Mold Liability in
the News
"Mold
problems have become more prevalent because of increased use of cheaper
building materials like plasterboard and plywood, which are more prone to
growing mold when wet...Mold, as always, is spreading. But so is mold
litigation, to the consternation of the insurance industry. Last week a
state court in Austin, Texas, awarded Melinda Ballard and her family $32.1
million in a case involving allegedly extensive mold damage to their
Dripping Springs, Texas, house. The jury ruled that Farmers Insurance
Group had failed to properly address Ms. Ballard's original water-damage
and mold claim and committed fraud in its handling of her claim,"
noted Christopher Oster, "Insurers Blanch At Proliferation of Mold
Claims," Wall Street
Journal, June 6,
2001.
Recent news articles highlight the growing number of lawsuits over
liability for mold contamination.
"Toxic mold lawsuits are spreading as fast as the fungus among us…Plantiff’s
attorney Alexander Robertson IV, of Woodland Hills, California, had his
first toxic mold case was in 1994, when he represented an unidentified
actor and his wife whose million-dollar home in Malibu was overrun with
slimy [deadly toxic mold] Stachybotrys that was harming their health. The
case was settled for $1.35 million. Robertson has since represented about
1,000 plaintiffs, and he fields calls daily from across the country,"
according to Fox News article "Lawsuits Multiply Over the Fungus
Among Us" by Adrienne Mand on its website: http://www.foxnews.com,
in an article dated Oct. 12, 2000.
Another mold lawsuit news article is "Mold forces cuts in hours at
Tulare County court," by Jennifer M. Fitzenberger, in The Fresno Bee
(July 19, 2000)---
Tulare County Courthouse employees who routinely call in sick alleging
toxic-mold contamination have led officials to limit daily access to three
public-service counters.
The employee
shortage has caused filing to back up in the clerks' offices, prompting
authorities to shave four hours of public access off each work day.
Those wishing to
do legal business -- such as pay a parking ticket, change a name or file a
civil lawsuit -- must do so between 8 a.m. and 1 p.m. Drop boxes outside
first- and second-floor clerk counters will take documents for filing and
payments until 5 p.m.
"I'm sure
people will be concerned that there's a cutback in service, but we didn't
have any choice," Superior Court Judge Paul Vortmann said Tuesday.
"It's reached a point where in order to keep our head above water in
the filing department, we had to close at 1 p.m."
The courts are
operating with two-thirds of normal staff. Twenty-seven of 84 employees
who work in the court division have taken medical leave, saying mold in
the building made them sick, Vortmann said.
Seventy employees
have filed for workers compensation and three have filed general liability
claims, County Risk Manager Gregg Breed said.
Friday, Darryl
Ferguson became the second Superior Court judge to file a general
liability claim with the county alleging mold-induced medical problems.
Ferguson's
lawyer, Steven Williams, said the judge will decide within six months
whether to sue the county for damages.
"I've been
suffering breathing problems for over a year. Even on the bench I gasp for
breath," Ferguson said. "I don't know if the problem is because
of the mold in the building.
"There isn't
any concrete proof that the building is a problem, but there are a lot of
indications."
The courthouse
mold scare began when Superior Court Judge Elisabeth Krant sued the county
in March, alleging that Stachybotrys mold found in her office made her
sick with rashes, nausea, headaches and dizziness.
She had
experienced the symptoms since November 1998, but her doctors couldn't
figure out what was wrong.
In April 1999, a
softball-sized cluster of Stachybotrys mold was discovered behind a
ceiling tile in Krant's office.
Authorities found
a small patch of Stachybotrys last month in a storage closet in the
basement of the courthouse used by the data-processing division.
Also, a single,
microscopic Stachybotrys spore was found in an air sample taken from
Vortmann's third-floor office.
Judges are
determining whether in-custody arraignments can be done at a building next
to Bob Wiley Corrections Facility, or whether the new Dinuba courthouse
can be used.
The three-story
building in Visalia also houses probation, the district attorney, the
public defender, elections, data processing, purchasing, the county
assessor, tax collector and auditor.
An environmental
expert has examined the courthouse and late last month deemed it safe to
work in, Breed said.
"Employee
safety is our concern," Breed said. "Our certified industrial
hygienist has said the building is safe, and we don't have to close it
down."
County officials
walked through the courthouse June 29 with a second environmental expert
who could order more tests, Breed said.
Vortmann said the
county isn't working fast enough to resolve the problem.
Court staff
members are meeting today with lawyers from the state Attorney General's
Office to discuss hiring a separate agency to test the courthouse for
mold.
"Maybe it's
mold, maybe it's not," Vortmann said. "We have to rely on our
experts to tell us what we should be doing.
"Our goal is
to be sure the environment is safe, and we want to do what's
necessary."
Ferguson said he
is worried about his work environment. The judge said he's been tested for
mold exposure and is waiting for results.
Ferguson, who
works out of a first-floor courtroom, moved to an office on the third
floor about a month ago when officials found evidence of mold in his
chambers.
Another good
article is "Legal Implications of Mold Contamination of HVAC
Systems" on the Heating, Piping, Air Conditioning and Engineering
website, May, 2000, by attorney Emily Wheeler---
The phrase
"sick building syndrome" (SBS) has become part of the common
vernacular over the last 10 years. Juries have been siding with plaintiffs
in IAQ lawsuits while toxic mold has led to the closing of office
buildings and schools. In this new environment, HVAC engineers need to
understand what their legal responsibilities are and how to protect
themselves.
The American
Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE)
indicates that 50 percent of all cases of poor IAQ result from badly
designed or fitted HVAC systems.1
One cause of
building-related illnesses (BRIs) is the growth and distribution of
various biological contaminants in HVAC systems. HVAC systems may produce
condensation, which contributes to the growth of microorganisms.2
Scientific studies have indicated that various types of nontoxic molds are
sometimes present in HVAC systems.
Toxic and
non-toxic molds have generated litigation for construction defects in
commercial buildings and for personal injuries to individuals. The suits
have been filed against contractors involved in the maintenance of HVAC
systems. One such case involves the Martin County Courthouse in Florida
(Centex-Rooney Construction Co. Inc et al. v. Martin County, Florida).
Centex-Rooney
entered into a construction management agreement with Martin County in
1985 to serve as the manager of construction of the courthouse and
adjacent buildings. Centex assumed complete control over the site and
project, including the selection of all subcontractors and the management
and inspection of all their work. Centex completed the project in 1988;
however, in early 1989 the county made several complaints to Centex about
window and exterior wall leaks, mold growth, and excessive humidity. An
investigation revealed problems with the HVAC system. While Centex and its
subcontractors attempted to remedy the problem, the humidity remained. The
complex was evacuated in December 1992 after more than 50 percent of its
218 employees developed SBS symptoms.
An IAQ expert
hired by the county discovered a significant presence of two highly
unusual and toxic molds that were not specifically identified in public
documents. The county filed suit against Centex, their sureties, the
project architect, and the concrete and masonry construction company for
breach of contract and negligence for the improper design and construction
of the courthouse. While the HVAC manufacturer and designers were
apparently not sued directly by Martin County in this action, there is the
possibility of continued litigation by way of a cross-complaint for
indemnity filed by Centex against the various subcontractors that it
hired.
Prior to trial,
the county settled with the architect and the concrete and masonry
construction company for $2.75 million. The jury awarded $14 million to
the county for the existing damage to the courthouse facilities. On
appeal, Centex claimed that the scientific principles underlying expert
testimony--studies linking exposure to the toxic molds found in the
buildings with health risks--were not generally accepted in the scientific
community. The Florida Court of Appeals rejected Centex's claims, stating
that each expert testified about numerous publications that were accepted
in the scientific community.
According to the
Centex-Rooney decision, plaintiffs may expand their causes of action from
negligence for construction defects to negligence for personal injuries.
IAQ plaintiffs may take the position that buildings and/or the HVAC system
within are defective products.
What, then, if
anything, can manufacturers, designers, and contractors involved in the
construction and maintenance of HVAC systems do to avoid or limit
liability for these types of potential lawsuits ?
Design
specification for HVAC systems should include attention to factors that
will minimize moisture accumulation. The HVAC system installed in any
commercial building must be well-maintained, inspected, cleaned on a
prescheduled and periodic basis, and repaired as needed. Inadequate
maintenance may cause growth and dissemination of molds--toxic and
non-toxic. There must be reasonable and consistent control of temperature
and relative humidity. Finally, there should be a commissioning phase
before a building is occupied to identify potential HVAC defects.
Emily Wheeler is an associate attorney with the firm Becherer, Kannett
& Schweitzer in Emeryville, Calif.
She specializes in cases involving
asbestos contamination as well as SBS litigation.
She can be contacted at ewheeler@bkscal.com
|