To Care and Control--Or Not

To Remediate Or Not To Remediate?

Lawsuits involving allegations of property damage and bodily injury caused by “toxic” mold have been commenced in jurisdictions across the country, with the filings increasing rapidly in the past couple of years.

A number of recent verdicts have demonstrated that there is potential for large damages awards in mold cases.

Some of these cases involve claims that a property owner or employer failed to remediate the mold condition after the condition was brought to their attention, while others involve claims that the remediation, while undertaken, was performed in a negligent manner.

For property insurers, property owners, landlords, employers, and the like, when faced with mold complaints, the question becomes: To Remediate or Not To Remediate.

We present our viewpointsfor and againstin the summaries that follow. This information is for educational purposes only and is not intended to be, nor should it be interpreted as, legal advice.

Prompt Remediation Is Necessary

By Scott Casher

Mold growing inside a building is unhealthy, no matter what kind of mold it is. While the science is still unsettled regarding whether mold can cause extensive bodily injury, all molds produce chemicals that can be released to cause and exacerbate allergies.

Moreover, mold growth can cause severe property damage if left unchecked. Therefore, the presence of mold, water damage or musty odors should be addressed immediately.

While there are varying theories about how and to what extent mold should be remediated, for now it would be prudent to remediate in accordance with EPA guidelines or the New York City Mold-Fungi Assessment and Remediation in Indoor Environments Protocol. The protocol has been adopted by more than 30 U.S. cities and states as well as by the Environmental Abatement Professionals across Canada.

Everyone agrees that the overall goal is to promote a more uniform approach to remediation procedures and protocols. But to sit on the sidelines and watch mold spread and cause more damage to a property makes no sense.

Determining what and how to remediate is best left to the individual property owner and its insurer.

The size of the area impacted by mold will determine the type of remediation. For example, small amounts of mold can be cleaned off many surfaces with a water and bleach solution. But once mold starts to grow in greater amounts, infiltrating insulation or wallboard, the only proper way to deal with the problem is by professional remediation.

It is true that the organic nature of mold can make it more difficult to remediate and prevent. However, if a property owner and insurer are aware of the mold problem and simply choose not to engage in some form of remediation, they could be held liable for additional property damage and bodily injury.

Therefore, prompt remediation of mold damage is necessary, and the simplest and most expedient remediation that properly and safely removes mold growth should be used.

Attorney Scott Casher is an Associate in the Insurance and Reinsurance Practice Group of Edwards & Angell, LLP. He may be reached at scasher@edwardsangell.com.

In The Absence of Credible Science,

Remediation is a Game of Blind Man's Bluff

By Charles F. Gfeller

Is “toxic” mold really “toxic?” As of now, no one is really sure.

When is a “remediated” building safe for re-occupancy? As of now, no one knows.

Imagine a situation where an insured makes a property damage claim purportedly arising from mold damage to his house. The insurer quickly sends in a “top” testing and remediation team, which works for several days to clean the house and eliminate the mold.

After several days, the team assures the insurer that the house is clean and safe. The insurer then conveys this message to the insured, who now moves back into his house.

Several weeks later, the mold re-appears and the insured returns to the steps of the insurer, renewing his claim for property damage and adding a personal injury claim, which results in a lawsuit. The lawsuit, incidentally, adds a third claim for negligent remediation against the insurer, which hired the “top” testing and remediation team.

But for the attempted remediation, the lawsuit seeking damages for property damage, personal injury and negligent remediation could potentially have been limited to a property damage claim, and certainly would have extended no further than a personal injury claim. By trying to remediate, this insurer has actually created more problems for itself, and potentially, its insured.

The science in the area of mold is not mature. No one knows for certain what standards to follow in terms of mold and the air. Consequently, when an insurer is confronted with a property damage claim, or even a personal injury claim, arising from the alleged presence of mold, while the natural instinct is to remediate immediately, there are significant risks associated with such a plan of action.

If there are no true standards for air quality as its relates to mold, then who will determine when, or if, the remediation successfully cleans the air on the subject premises?

This issue can quickly boil over and become a potential source of liability for the insurer (i.e. negligent remediation claims), not to mention an expensive one.

The absence of generally accepted scientific standards pertaining to mold make testing and remediation nothing more than a guessing game. In addition, if the remediation is done negligently or in an untimely manner, the insurer could open itself up to further liability.

Until the scientific community arrives at a generally accepted set of standards for air quality as to mold, as it has previously done with asbestos, mold remediation is a dangerous game.

Attorney Charles F. Gfeller is an Associate in the Insurance and Reinsurance Practice Group of Edwards & Angell, LLP. He may be reached at gfeller@edwardsangell.com.

Reproduced from National Underwriter Property & Casualty/Risk & Benefits Management Edition, June 30, 2003. Copyright 2003 by The National Underwriter Company in the serial publication. All rights reserved.Copyright in this article as an independent work may be held by the author.