Seminar on Toxic Molds - April 30, 2002

[Guest guest]

: Dear Barbara:

:

: Please tell members of your group that I will

: be giving a seminar on legal issues involving Toxic Mold on April 30,

2002.

: Please have anyone interested to email me.

:

: Best regards,

:

: Jany K.

: Attorney at Law

: Oles on Rinker & Baker LLP

: 701 Pike Street, Suite 1700

: Seattle, WA 98101

: 206.623.3427

: 206.682.6234 (fax)

: jacob@...

:

:

This is an article written by Jany :

http://www.djc.com/news/enviro/11123732.html

July 12, 2001

Construction faces new foe: toxic mold

By JANY K. JACOB

Oles on Rinker & Baker

When most people think of the word " remediation " they think of hazardous

substances like asbestos, lead-based paint or PCBs. They don't think of

" mold. " But that's all about to change because it looks like mold growth in

buildings is going to be the next big environmental concern for the

construction industry.

Liability for " sick buildings " is currently being litigated in the courts:

Homeowners' associations and condominium associations are suing contractors

for construction defects, breach of contract, breach of warranty and for

either inappropriate selection of building materials or improper

installation of building materials resulting in mold contamination.

Developers are being sued for excessive flooding of streets and yards in

subdivisions leading to basement flooding and mold growth under legal

theories of breach of contract, breach of warranty, fraud and

misrepresentation, negligence and violations of the Consumer Protection Act.

Manufacturers of prefabricated homes are being sued for negligence and

strict liability in the defective construction of new homes containing mold.

Architects are being sued for defective design leading to mold

contamination.

Insurers are being sued over denial of comprehensive general liability

insurance coverage for mold remediation.

Home inspection agencies are even being sued for professional malpractice

and negligence in their failure to detect mold growth that caused personal

injury to the plaintiff.

Damages sought in these types of lawsuits typically include compensation for

bodily injury and health risks and the cost of repair, remediation or

cleaning of discolored surfaces.

In one case, Centex-Rooney Construction Co. Inc. v. County, Fla., a

public owner sued a construction manager for breach of contract when toxic

mold was found in a new courthouse. After substantial completion and well

into occupancy, the owner complained of excessive humidity and mold growth.

The courthouse was evacuated so that remedial action could be taken. The

county then filed suit and argued that construction defects were the cause

of the courthouse employees' ailments. The owner attributed the excessive

moisture in the building to water infiltration through the exterior

insulation and finish system and a faulty heating, ventilation and air

conditioning system. The county walked away with a $11.5 million jury

verdict.

Why does mold grow in buildings?

Mold and fungi are naturally present in building materials. Upon sufficient

exposure to moisture, these microscopic organisms grow and germination

occurs. Theories are abundant about what causes the excessive moisture in

buildings that, in turn, fosters the mold growth.

These theories include: improper " drying in " during construction, inadequate

building envelope or waterproofing that causes exterior wall leaks, improper

installation of vapor barriers that causes ceiling insulation damage from

condensation within the insulation cavity, application of paint-like

sealants that result in discoloration of the exterior of homes, lack of

foundation vents in structures, leaky roofs resulting in water intrusion,

faulty plumbing, improper dormer flashings or decks that were not sloped to

drain. Energy codes that call for air-tight buildings have also been blamed

for mold growth.

Why is mold a cause for concern?

Fungal growth in buildings results in the release of millions of mold spores

that are inhaled by building occupants. Some species of mold produce toxins

and inhaling mold spores from these species may cause allergies or disease.

One such species is stachybotrys chartarum or black mold. Other toxic molds

include aspergillus versicolor and some penicillium species.

Toxic mold exposure may cause respiratory and sinus problems, chronic

headaches, fatigue, painful joints, dizziness, memory loss, hearing loss,

bleeding in the lungs or exacerbate asthma. It is also believed that

prolonged toxic mold exposure may be fatal to individuals with weaker immune

systems such as children, hospital patients or the elderly. It is believed

that 29 percent of the general population is also allergic to mold and

fungi. Mold growth can also deteriorate and cause the decay of building

materials. This is because these organisms eat away at the materials on

which they grow.

In recognition of the growing concern over mold or bacteria problems,

industrial hygienists and labs are beginning to offer microbial testing and

spore counts, air and settled dust sampling, and HVAC tracer gas

evaluations. Consultants are also offering building envelope and waterproof

building design services, moisture-probes and the use of dye water

techniques to confirm the source of water intrusion. Chemistry and

bacteriology experts, and mold abatement contractors, are also beginning to

offer their services.

Mold remediation may be comparable to hazardous substance remediation.

Temporary evacuation of the contaminated building may be necessary, workers

may need to use respirators, gloves and goggles and the remediation

technique may involve encapsulation, HEPA vacuuming, cleaning, disinfecting,

sealing or removal and replacement of contaminated materials such as

drywall, ceiling tiles or ductwork liners from air handling units.

New DNA technology developed by EPA scientists is also expected to

facilitate mold detection and abatement. Mold prevention may be the next

step and already antimicrobial air filters and mold inhibitors for paints

are on the market.

Mold liability is an emerging issue for the construction industry and

statutes and regulations have not fully addressed the problem. The EPA is

currently researching indoor air quality issues. For now, savvy contractors

should read their insurance policies to ascertain the extent to which they

are covered for mold issues, and request extended coverage or endorsements

as necessary.

What caused the mold damage in a particular building may be crucial to

whether its remediation is covered under a particular insurance policy.

Thus, testing may have to be performed to determine the cause of mold

growth. Contractors should also make sure that construction contracts

clearly allocate the risk of loss for repairs or remediation necessitated by

mold damage among the contracting parties.

In addition to stating which party will be responsible to make repairs or

perform remediation, the contract should clearly set out what must be done

to remedy mold damage, including which fungicides will be used and what

level of mold growth will require that entirely new building materials be

substituted by the responsible party.

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Jany K. is an attorney at Oles on Rinker & Baker LLP. She

practices in the areas of environmental law and construction law and may be

reached at (206) 623-3427 or by email at jacob@....