The New Asbestos?

12/05/2001 |

Preventive strategies for mold litigation

By Susan M. Hickman

Mold is not new. What is new is the increasing focus on mold, its potential health effects, and the costs of clean up and litigation. Claims are made in two categories: personal injury and property damage. Personal injury claims can arise from occupants as general liability claims or, if the occupant is an employee of the building owner, as a worker's compensation claim. These claims seek monetary damages for illnesses alleged to be caused by mold contamination.

One component of the damages often sought is money for "medical monitoring." This is a fund of money to pay for lifelong testing and monitoring of the claimants' health to ensure they do not develop medical problems or that those problems do not go undiagnosed or untreated.

Property damage claims arise when a building contaminated by mold has to be remediated. Remediation in this context can range from relatively minor and inexpensive clean up to full containment clean-up and even removal of much or all of a building's interior. Disputes may arise between building owners and their insurance carriers. Some of the issues that must be resolved are:

• Is there insurance coverage, and to what extent is the remediation cost and cost to rebuild or replace removed materials?
• Is there another entity responsible for causing the mold contamination? All potentially responsible parties are litigation targets.

In either context, personal injury or property damage, the inquiry will center on two questions of causation. First, what caused the mold contamination; and second, did the mold contamination cause the specific illnesses and/or property damages claimed? Mold-related litigation involves complex issues relating to a building's design, construction, operations, and maintenance. The legal, technical, and scientific issues are fact-intensive and drive the cost of this type of litigation extraordinarily high.

A mechanical engineer may be required if the ventilation system is contaminated with mold, or is otherwise implicated in contributing to or causing the mold problems. Medical expertise may be required, depending on the range of symptoms and number of individuals experiencing symptoms. In any situation involving significant mold contamination, competent legal counsel should coordinate an overall strategy for communications, management, and documentation.

Recent verdicts, such as the $32 million awarded to the Ballare family in Texas, have only fueled the increasing public concern and promoted more litigation. Mold may be "the next asbestos" in terms of the costs of remediation and litigation. Unlike asbestos, however, there are no general regulations that govern mold exposure. This makes it even more imperative that developers, owners, and facilities managers have plans and procedures in place to address potential mold problems before litigation arises.

Susan M. Hickman, a partner with the Chicago office of the national law firm Hinshaw & Culbertson, concentrates her practice in the area of indoor air quality, with a current emphasis on mold-related issues.


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