Keep Careful Documentation
During the past few years, lawsuits related to mold and other pesky microbes have spread across the landscape, causing many legal experts to wonder if these claims will outpace the asbestos litigation they’ve seen over the past two decades.
While mold lawsuits generally involve an assortment of defendants, most revolve around a recurring theme: conditions that fostered the growth of toxic molds, causing building damage and personal injury.
For information about protecting employees involved in clean-up and prevention, click here to read an OSHA report, A Brief Guide to Mold in the Workplace.
The most common types of liability involve:
- Claims against architects and contractors, especially reconstruction contractors. The most prevalent of these claims is based on a theory of negligence. In the case of contractors, claims are usually formulated around the idea that the contractor didn’t allow sufficient time for interior wood or other material to dry before being sealed. Lawsuits against architects usually claim negligent design of a building or its mechanical infrastructure, creating “dead zones” or insufficient air exchange to prevent mold growth. Reconstruction contractors have been involved in a variety of claims, including water loss due to broken pipes, snow or ice damage, and failure to create a dry environment prior to re-installing drywall and other materials. For protection, contractors should always carefully document their efforts, including the moisture content of subflooring, joists, and studs.
- Claims of condo owners against condo associations, or tenants against landlords. These suits are usually related to common elements such as crawl spaces and attics where mold could grow. Landlords and condo associations are accused of failing to properly maintain the areas. People who become ill due to toxic mold might look to the landlord or association to cover their healthcare expenses. Mold cases are a real legal conundrum, because it can be difficult to determine an exact cause. A leaky pipe, for instance, could cause mold to get a foothold, and the problem can be further exacerbated by general moisture conditions in the building.
- Claims of policyholders against insurance companies. Insurers can be found liable for unreasonably denying coverage on a claim, failing to investigate the facts, and refusing to pay in an effort to force a favorable settlement. Bad faith claims are popular because most jurisdictions allow for punitive damages.
Mold lawsuits are also difficult because of the number of parties involved. It’s not unusual for a disgruntled building owner to sue the general contractor or his bonding agency. These parties might then begin suing subcontractors, architects or others involved in the construction. Before you know it, 50 or 100 individuals or companies could be involved.
With large office buildings, damages for remediation of the mold (removal is similar to asbestos) can cost millions of dollars. In some cases, remediation of the mold was not possible and demolition was the only solution.
Since it’s difficult, if not impossible, to document where the mold started or what conditions allowed it to flourish, the best defense is a well-documented project file noting that proper construction methods were used with dry materials. That old adage about an ounce of prevention couldn’t be more relevant. It might be worth a pound of cure in litigation down the road.
Many of these molds have been found to cause adverse health reactions including allergies, asthma attacks, brain damage and even death. People with known health problems related to “sick building syndrome” or indoor air quality are perfect candidates for a toxic mold reaction.
How It Spreads
Generally speaking, toxic mold requires three elements to flourish: Moisture, a temperate climate, and a food source (usually wood, paper, or other carbon/cellulose-based material). Mold grows quickly, sometimes in less than 48 hours.
If you would like more information about this this topic or our Architectural, Engineering and Construction (AEC) Industry services, please contact Scott Hursh, CPA, CCIFP, AEC Group Managing Partner.
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