ENVIRONMENT: Is Toxic Mold Contamination the Next Asbestos?

Recently, there has been an explosion of new lawsuits related to mold and other microbial contaminants. These lawsuits can involve different types of defendants, but generally revolve around a recurring theme. Somehow, conditions were created, or allowed to exist, which fostered the growth and proliferation of toxigenic molds causing building damage, personal injury and sometimes death.

These developments have caused many lawyers to prognosticate that mold lawsuits over the next 20 years could outpace the asbestos litigation which has exploded over the last two decades.

THE MOLD PROBLEM:

Generally speaking, toxic mold only requires three elements to flourish:

1. moisture

2. somewhat temperate climate

3. a food source (usually, wood, paper, or any other carbon/cellulose base material)

It does not take long for mold to get a strong foothold in a structure. Generally speaking, toxic molds such as stachybotrys can get a foothold in a structure in less than 48 hours. If the mold has the proper environment identified above, it can flourish and spread very rapidly.

Many of these “toxic molds” can cause extreme adverse health effects, from allergic reactions and asthma attacks to brain damage, immunodeficiency and even death. Thus, people who have previously identified concerns related to a structure as “sick building syndrome” or have other concerns regarding indoor air quality, may potentially have a toxic mold reaction.

WHO CAN HAVE LIABILITY?

Liability in mold cases generally arises in one of four contexts:

1. Claims against architects and contractors, especially reconstruction contractors

2. Claims of condominium owners against condo associations

3. Claims of tenants against landlords

4. Claims of policyholders against insurance companies

The most common manifestation is against either the contractor or architect based upon a theory of negligence. Claims against architects generally include negligent design of a building or its mechanical infrastructure in such a way that fostered mold growth, created “dead zones” or did not allow for sufficient air exchange to prevent mold from growing inside a structure. Claims against contractors generally arise from a theory of negligence that a contractor did not allow sufficient time for interior wood work or other cellulose material to dry before it is sealed.

Claims against reconstruction contractors are common, as any water loss related to broken pipes, snow/ice damage, fire sprinkling systems, etc. can provide sufficient long-term moisture to cause mold problems. Frequently, allegations against reconstruction contractors assert that the contractor did not create a sufficiently dry environment prior to reinstalling drywall, etc. Such contractors would be well advised to document carefully their reconstruction efforts, including notations of the moisture content of subflooring, joists, studs, etc.

Claims are also frequently made against condominium associations, as most condominium documents set forth that it is the association’s duty to insure and maintain common elements (crawl spaces, attics, etc. ) where mold can proliferate. If these areas are not properly maintained or sanitized, individuals who become ill frequently look to the association to cover this expense. Landlords receive similar claims by tenants.

Mold cases are highly problematic from a proof perspective due to the fact that it grows so rapidly and is difficult to determine a specific single cause. Frequently, there will be a water-related event, which causes the mold to get a foothold, and then general ambient moisture conditions within the building allow the mold to grow and spread.

Mold lawsuits are also difficult because of the number of parties involved. It is typical for a disgruntled building owner to sue the general contractor and/or his bonding agency. These individuals then begin suing other subcontractors, architects or anyone else who may have had any involvement in the construction project. Before you know it, 50 to 100 individuals or companies may be involved in the case if the losses are significant.

In some cases with large office buildings, damages for remediation of the mold (which has to be done in an asbestos-removal-like manner) can cost tens or even hundreds of millions of dollars. Sometimes, remediation of the mold is not possible and the structure must be demolished under controlled conditions.

Since it is difficult, if not impossible, to forensically document where the mold originated or what conditions allowed it to flourish, a potential defense exists in a well-documented project file demonstrating that proper construction methods were utilized with sufficiently dried materials.

Thus, as it is in many other contexts, an ounce of prevention in the form of documentation and follow up, may be worth a pound of cure in litigation costs down the road.

Joseph Quandt is a partner with the Traverse City law offices of Menmuir, Zimmerman, Kuhn, Taylor and Quandt, PLC. Prior to private practice, he was an enforcement specialist with the Michigan DEQ.

This article does not provide, nor is it intended to provide, any legal advice regarding any particular situation or subject. BN

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