Massachusetts Jury Awards Half Million in State's First Mold Judgment

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Massachusetts Jury Awards Half Million in State's First Mold Judgment

BOSTON November 26 (BestWire) - In a sign that mold litigation cases might be moving northward, a Massachusetts jury has awarded $549,326 to a condominium owner who sued her association, claiming its failure to remediate mold in her unit caused her to suffer a variety of health problems.

Boston-based attorney J. Doyle, who represented plaintiff Katrine s in the suit against the Pirates Lane Condominium Trust in Gloucester, Mass., said Essex County Superior Court jurors in the case found the trust was aware of moisture problems in s' condominium and negligently failed to alleviate them.

The judgment was against the condominium association, which was a trust, and was based on its failure to repair and maintain s' unit to keep out water and mold, Doyle said. "The evidence we presented was that the mold resulted from the moisture and that that's what made her sick, and the burden of proof in civil cases is that it's more likely than not."

The case, which marks the first mold litigation to reach a verdict in Massachusetts, originally was filed in 1995, shortly after s' doctors advised her to move out of the unit because she was suffering from asthmatic symptoms, Doyle said, adding that s had only lived in the unit for six weeks. The jury award was for $285,000, with interest raising it to $549,326.

Representatives of the condominium trust couldn't be reached immediately for comment.

"The unique thing about this case is that it occurred in Massachusetts, whereas most of the larger claims of these sort have occurred in the South and the West," said Hartwig, chief economist and senior vice president of the Insurance Information Institute. "It's also symptomatic of a trend away from larger claims on the homeowners side, where 43 states to date have approved exclusions, and a migration over to the commercial side. We have experienced that in places like New York, where there have been suits against apartment complexes, and in other states against office complexes."

Although several scientific studies have shown that damp living conditions, which favor production of mold, bacteria and dust mites, can exacerbate existing asthmatic conditions, evidence for common molds causing such conditions is considerably thinner, Hartwig said. A 1993 study in Cleveland by the Centers for Disease Control linked the mold stachybotrys chartarum to pulmonary hemorrhaging among infants, but the CDC later disavowed those results.

Nonetheless, mold has had a powerful impact on insurers, particularly in Texas, ever since a $32 million mold-related jury award in the case of Melinda Ballard vs. Fire Insurance Exchange, an affiliate of Farmers Insurance Group, in 2001. The Texas Court of Appeals reduced the award to $4 million in December 2002 (BestWire, Dec. 20, 2002).

Other major tort awards have included $18 million in the California case vs. Allstate Insurance Co. and $4 million in the Arizona case Hatley vs. Century-National Insurance Co., both also in 2001.

A Consumer Federation of America survey suggested mold drove homeowners insurance rates up an average of 13% nationwide in 2002. According to the CFA's data, homeowners rates rose on average 3% in 1999, 4% in 2000, 7% in 2001 and 13% in 2002, with Texas having the highest average increase at 57%

(BestWire, April 24, 2003).

(By R.J. Lehmann, associate editor: raymond.lehmann@...