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.