Masonry Magazine March 2004 Page. 58
Legal Issues
Mold Liability:
The Good, the Bad and the Really Ugly
Warren Lutz, Esq.
Jackson & Campbell, P.C.
Years ago my father told me that there were certain four-letter words that just should not be spoken. He said that they were hurtful words and caused others to feel bad. If he were alive today, he would be adding to his list another such word: mold.
This microscopic organism has been around for millions of years, but only recently mold has risen to the forefront of litigation and insurance-related controversies. The construction industry is not immune to these disputes, and it can expect to deal with mold problems for the inevitable future.
Every five years, almost like clock-work, another construction product or "toxin" becomes the darling of plaintiffs' attorneys, and the focus of widespread news coverage. In the 1980s, the hot issues were asbestos and urea-formaldehyde foam insulation. By the 1990s, the focus became radon, fire retardant treated plywood, polybutylene pipe and EIFS. Now, its mold and "sick building syndrome," coupled with splashy lawyer ads warning of "toxic mold" and "black death." It is certainly true that some molds, at high concentrations, can cause adverse health reactions in some people. But most mold that we encounter is of no threat. Unfortunately, the truth has not thwarted the new cottage industry of mold lawyers, testing firms and remediation companies.
While the highly publicized mold "crisis" presents some issues of genuine concern, there are some steps you can take to minimize your liability exposure. This article discusses the science of mold, the impact of mold upon construction, lawsuits and insurance, and offers suggestions as to what you can do about it.
Mold 101
MOLD IS A UBIQUITOUS, multi-celled, parasitic life form. Over 100,000 species of mold exist in the air, soil and water, and they are found throughout most buildings. Mold requires moisture to survive, and thus it is generally found in buildings around areas with water leaks and high humidity. Removing the moisture typically reduces or eliminates the mold, but spores of the mold may dislodge and become airborne, increasing the likelihood that they will come into contact with persons.
Most mold is harmless. Some mold species, however, produce mycotoxins that cause toxic reactions at certain levels in humans. Stachybotrys and aspergillus are the most common molds that can at sufficiently high levels produce adverse reactions. The ailments caused by high dose mold exposures include allergic reactions, respiratory difficulties, asthma, infections and rashes, to name a few.
Heavy concentrations of mold can be seen by the naked eye, and may appear as black, green or brown discoloration on wall surfaces. Mold in smaller concentrations is usually not visible, but can still produce unwelcome health problems. Its presence can be determined only by competent testing, usually in the form of air sampling and surface-swipe analysis, which compares