Lawsuits for Toxic Mold Exposure in Your Home

Personal injury cases over harm caused by mold are a type of "toxic tort" claim. This article discusses the health effects of exposure to mold, and the central elements of toxic mold cases brought against home builders and contractors.

What Is Mold?

Mold can be found virtually everywhere, including in most homes and other buildings. Of the thousands of types of different molds, only a few have been positively identified as causing respiratory problems and other health issues. Some health experts claim that even more serious illnesses can also result from mold.

The documented "common" effects of exposure to mold, according to the Centers for Disease Control and Prevention (CDC) are:

• hay fever-like allergic symptoms
• certain individuals with chronic respiratory disease (chronic obstructive pulmonary disorder, asthma) may experience difficulty breathing, and
• individuals with immune suppression may be at increased risk for infection from molds.

The Presence of Mold In Your Home Doesn't Guarantee Illness

if you've found mold in your home but are not sick in any way, it might be time to clean up the mold, but you shouldn't lose any sleep. On the other hand, if anyone has been experiencing regular respiratory or other allergic symptoms, you may have found the cause.

According to the CDC, there is some limited evidence that prolonged exposure to mold may cause children already genetically predisposed to asthma to be more likely to develop asthma. Whether or not someone is sick or you have children in the house, it is a good idea to clean up any large mold infestations.

While some molds like the green-black Stachybotrys atra might receive a little more press, there are not well- documented differences in the effects or toxicity of the various house-hold molds.

Almost all houses have some kind of mold somewhere. Wherever moisture accumulates, there is likely to be mold. The greater and more frequent the invasion of moisture, the more mold you'll find. Leaky pipes, frequent bathroom floor accumulations and rainfall penetrating the foundation are some of the common sources.

Water Intrusion Is the Main Cause of Mold

Mold requires moisture to grow. Regardless of the type of theory a plaintiff uses to sue a contractor or builder for mold exposure, typically the underlying facts involve construction or repair of a building that allowed water to intrude and/or stagnate inside. This could be caused by any number of design or work flaws -- for example, failing to provide proper drainage in a basement, or leaving a leaky pipe in between floors.

Lawsuits Over Toxic Mold

If you can show that the construction of the home itself – leaky pipes, water intrusion into the basement, etc., contributed to your mold problem, you may be able to sue the builder or construction company.

"Battle of the Mold Experts"

With a general lack of government standards and definitive scientific studies, many mold cases, including those against builders and contractors, come down to a "battle of the experts." That is, both sides hire an expert on the health effects of mold to testify that the kind of mold found in the injured person's building was or was not capable of causing the plaintiff's injuries.

The lack of scientific consensus about mold does not mean that the plaintiff will always lose -- plenty of juries have been convinced by the plaintiff's expert that mold was the underlying cause of the plaintiff's ailments, and those juries have found the defendant liable.

Types of Mold Cases Brought Against Builders and Contractors

The handful of state regulations that apply to mold (there are no federal regulations yet) are mostly directed at landlords. This means that mold cases brought against builders and contractors must fit the elements of more general legal theories. In particular, a plaintiff could sue a builder or contractor for mold exposure for breach of contract, breach of warranty and negligence.

Breach of Contract

A plaintiff bringing a breach of contract case would argue that the manner in which the builder or contractor constructed the building or performed repairs left the building susceptible to mold, and therefore breached the work contract.

Breach of contract damages are typically limited to out-of-pocket losses and lost value, and do not include compensation for "pain and suffering," although those kinds of damages can be included for a negligence claim in the same case.

Breach of Warranty

A breach of warranty legal theory is very similar to a breach of contract theory. A plaintiff bringing a breach of warranty case would argue that the builder or contractor's work did not meet the standards required of an implied warranty, a specific warranty the builder or contractor made ("express warranty"), or a state law creating a warranty for new construction.

A breach of implied warranty theory would be based on the fact that a house should be fit for habitation when it is sold and that a house infested with mold is uninhabitable. An express warranty theory would also work if the builder or contractor guaranteed that the construction or work would be free from mold or similar defects. Finally, most states impose warranties on new home construction, guaranteeing those homes will be free from defects. A state's new construction warranty laws generally only apply for the first ten years after the home is built.

Negligence

Under a negligence theory, the plaintiff must prove that the builder or contractor owed the plaintiff a duty to build or keep the house free from mold, that the builder or contractor failed to do so, and the plaintiff was injured by the resulting mold. A negligence theory is valuable to a plaintiff because pain and suffering damages are available in a successful claim. However, a negligence theory has more elements and can be more difficult to prove, particularly when it comes to proving a direct link between the allegedly negligent construction and the presence of mold.

Does My Homeowner's Insurance Cover Mold Cleanup?

For a long time, mold cleanup was generally excluded from standard homeowner's insurance policies. However, inconsistent decisions from various state courts started to call into question whether mold cleanup was excluded from coverage when the mold was caused by something that was covered by the insurance, for example a ruptured pipe.

Rather than continuously litigate mold cases, many insurance companies now include mold coverage when the mold comes from specific causes. This kind of coverage will usually be for a specified limit and not up to the full amount of overall coverage.

Similarly, you or your agent might have included a "rider" that added mold coverage to your policy. If you do have a rider, your general policy may have a mold exclusion, but the rider cancels that standard exclusion and establishes new terms. Finally, you may have purchased a separate mold coverage policy from another company, but those are typically quite expensive and you would probably remember if you had such a policy.

These newer mold coverage provisions, whether a part of the standard policy or added on as a rider, typically cover all kinds of fungus, including mold, and all of the by-products like odors and spores. If you're not sure after reading the policy, your best bet for figuring out what your policy covers is to contact your independent insurance agent and have him or her look over the policy. If you don't have an agent, or don't trust that he or she is "independent" from the insurance company that issued the policy, then your next step is to have an attorney look over the policy.