Talk to Lorne Steiner… the largest law suit over mold which was filed by tonight show co-host Ed McMahon was successful against the inspector (millions of dollars).
Guess what? The inspector had all those exclusions, had a signed pre-inspection agreement, and said over and over that he doesn’t test for mold.
He lost, and was sued out of business.
He lost because he didn’t do a mold test… even though he doesn’t do mold tests.
Don’t shoot me (the messenger).
Anyway, you can turn the http://www.nachi.org/moldwaiver into a notice rather than a waiver if you want. Just put in your inspection report that you offered to do a mold test for the client, the client declined, you asked them to sign the mold waiver, they didn’t, you gave them an unsigned copy which is also enclosed.
Here’s a radon waiver to include in your report: http://www.nachi.org/radonwaiver.htm I’d print it off and just include it in every report.
Trial Lawyers, Inc. makes more and more money off mold despite the lack of scientific evidence
Ed McMahon Lawsuit Which of the named litigants is the HI ???
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Mr. Connell,
Why do you do mold sampling? Under what circumstances does your position as a Forensic Industrial Hygienist require samplng that would not be required for a Home Inspector doing a pre-screening?
Good find Thanks Brian … Roy Cooke
Mold Litigation
General Information:
" According to a white paper quoted in the Mortgage Servicing News, there were few insurance mold claims before 2000 and those that did exist were generally settled for a few thousand dollars. It was only after a series of high-profile cases (Texas & California among them) that mold litigation began its boon.
" Multimillion-dollar mold claims filed by celebrities such as Ed McMahon, Erin Brockovich, Bianca Jagger and Michael Jordan also have added to the visibility of the issue.
" As of June 2005, mold claims by homeowners routinely exceeded $100,000, and mold claims in the commercial setting often exceed $1 million.
o From 2001 to 2003, the cost of mold claims has more than doubled.
o U.S. insurers paid out $1.3 billion in mold-related claims in 2001, and more than $3 billion in mold-related claims in 2002.
" Several sources estimated the average number of daily mold claims in 2004 was ten.
" The Insurance Information Institute, New York City, estimated that as of June 2005, over 10,000 lawsuits were currently pending across the country alleging mold-related injuries.
o 2005 number was a 300-percent increase since 1999.
o 5,000 bad-faith claims against insurance companies
o 2,000 claims against property management companies and homeowner associations
o 2,000 claims against designers and contractors
o 1,000 claims against sellers of single-family residences.
" An article in the Mondaq Business Briefing noted that in cases of mold, “the plaintiff has the burden of showing that the mold caused by the defendant’s alleged negligence caused their injuries”.
o Mold testing other environments-plaintiff’s work place, gym, etc may show the plaintiff is exposed higher levels of mold at those places.
o if the plaintiff is allergic to other environmental allergens, such as pet dander, pollen, or dust mites, their doctor may not be able to testify that their symptoms are, more likely than not, caused by the mold exposure.
o failure to mitigate is often a viable defense/once a person is no longer exposed to mold their allergenic symptoms generally cease
" Nicholas Money, Ph.D claims in “Builder” article that moisture measurements are overrated but important in legal cases because “the jury will not be impressed if the expert witness answers ‘really wet’ or ‘my glasses steamed up’ when questioned about the dampness of a property”
o His advice to expert witnesses: Give the jury numbers, and defend your numbers as if your life depended upon them"
" Plaintiffs often have very difficult time proving causation
" According to an article in “Business Insurance,” by 2004 insurance companies had grown wise to increased mold suits and claims and had begun implementing absolute mold exclusions.
" Mold cases that are actually litigated are relatively few compared to the over 10,000 mold cases currently pending in state courts across the country. Defense victories are never publicized to the same extent as runaway jury verdicts or huge damages claims (which are later settled silently).
Landmark Cases (State by State)
Arizona
2004
" Official Title Unknown, Case Dismissed
o tenant sued apartment owner, alleging exposure to mold resulted in a brain injury and other health issues.
o study by Institute of Medicine of the National Academy of Sciences surmised that while mold can cause allergies and exacerbate the symptoms of individuals with asthma, it cannot cause severe illness or injuries such as cancer or neurological problems.
o This study was cited in this case.
o The Arizona court ruled in favor of the defendant, indicating there was insufficient evidence linking the plaintiff’s health issues to the existence of mold.
California
" Toxic mold claims have created a cottage industry of experts - among them the L.A. law firm of Wood Smith Henning & Berman, which has gone from nine lawyers to 83 since opening its doors in 1997.
" Mold is a big issue in the western area of the country where litigation is growing when it comes to dealing with new construction, according to Stuart Wolfe, a partner with Wolfe & Wyman LLP here.
1998
" Official Title Unknown $12 million settlement
o Wood Smith, which had handled construction defect and personal injury claims, ran across its first toxic mold case in 1998
o firm represented a third party defendant in a Beverly Hills suit
o largest toxic mold settlement of it’s time
2005
" Gorman vs. Crenshaw (Official title unknown) $22.6 million settlement
o Family claimed that moldy lumber used to build their house severely injured their son.
o Gormans contend their son, Kellen, suffered serious neurological brain damage because of exposure to toxic molds growing on framing studs that had been improperly stored at Crenshaw Lumber Co. in Gardena, Calif.
o Kellen’s father also complained of cognitive and neurological problems such as memory loss, which the plaintiffs’ medical experts testified is associated with exposure to certain fungi, Witzer said.
o One of the first successful mold lawsuits against a lumber yard - and the largest to involve a single-family home
o Loss perhaps due to disorganization of defense.
o seventeen defendants agreed to pay $13 million, but admitted no wrongdoing.
o The other defendants in the suit agreed to pay a combined $9.6 million as part of the settlement.
" Dr. Sanette Gite vs. Home Depot, et al. Dismissed
o Plaintiff Dr. Sannette Gite claimed physical ailments from microbial exposure including permanent brain damage, upper and lower respiratory problems, lung incapacity, voice impairment, low white blood cell count, dizziness, lethargy, shortness of breath, gastrointestinal problems, bloating, diarrhea, angina, hair loss, headaches, memory loss, stuttering, rashes and skin discoloration.
o She claimed all her personal property had been subjected to microbial contamination and was incapable of cleaning
o She sued Home Depot and its trade contractor for the mold growth which purportedly was caused by water wShich entered through the threshold of French doors installed in the family room of her home.
o Gite made a settlement demand prior to trial for $26 million. This included her claim for future loss of earnings due to her alleged inability to ever work again.
o Despite the presence of stachybotrys, penicillium/aspergillus and a host of other molds, the defense successfully established the absence of any negligence.
o after six weeks of trial, the jury threw out the $26 million claim.
Colorado
2002
" Official Title Unknown, Outcome Uncertain
o Richmond American Homes, Colorado’s largest home builder
o spent nearly $19 million to repair Front Range homes plagued by mold and water damage"
o alleges insurance companies refused to reimburse the home builder after it submitted repair claims under several general liability insurance policies
o homes were built between 1993-2002
o Richmond is seeking triple damages - more than $50 million
2003
" United Airlines vs. Denver (Official title unknown)
o employees filed a lawsuit seeking class-action damages against the city and county of Denver
o claimed that the city and county failed in their “duty to maintain the airport in a reasonable safe condition” which resulted in “reoccurring respiratory conditions and other problems”
Florida
" General Description of Reoccurring Cases
o Lawsuit filed against school districts
o presence of mold in the schools that allegedly caused students to develop respiratory or other health problems
o Several of these cases involve multiple plaintiffs and multiple schools.
2004
" Official Title Unknown, Settlement of $25 million
o class action suit by tenants of Archstone-Smith’s Harbor House South high-rise apartment property
o Bal Harbour, Florida
o resulted in a settlement of $25 million (Kirk, 2004).
2006
" Card vs. FEMA (Official title unknown) Likely to be dismissed
o Tracy Card of Edgewater says she has lived in a FEMA camper for nearly 13 months with her fiancé and 5-year-old disabled son due to serve mold damage to her home
o City staff tells her she should have made repairs sooner with more than $20,000 in reimbursement funds to stop the damage from getting worse
o She has held out to try for total replacement costs, and even sued her insurance company.
o City officials say the family was slow to repair the house, making matters worse with each rain and new storm.
Hawaii
2003
" Official Title Unknown
o A year after it opened in 2001, the 25-story, 453-room Kalia Tower at the Hilton Hawaiian Village in Waikiki was shut down because of a persistent mold problem
o The tower had cost $95 million to build, and Hilton Hotels spent $55 million on the cleanup, which lasted 13 months.
o Hilton has sued two dozen businesses and individuals, including architects, construction companies and engineers, saying they were responsible for construction defects that allowed the gray fungus to flourish
Illinois
2005
" General Description of Reoccurring Cases
o presence of mold in the schools that allegedly caused students to develop respiratory or other health problems
o Several of these cases involve multiple plaintiffs and multiple schools.
" Guy vs. Allstate (Official title unknown)
o Luann Guy alleges that Northbrook, Ill.-based Allstate did not inform her about mold coverage and never sent an inspector out to look for the destructive fungi.
o She’s suing the company for breach of contract, claiming she hasn’t received any of the $10,000 policy limit for mold.
Nevada
" 75 percent of the construction defect cases filed in the past six months in the state have some sort of mold claim.
New Jersey
2003
" Official Title Unknown, Settled for $2 million
o condominium owners sued their management company, as well as the firm that sponsored the construction, claiming that flawed design and improper construction allowed water to leak into the wall, causing mold damage.
o The lawsuit was settled for $2 million (National Law Journal, 2003).
New York
2002
" Official Title Unknown
o $400 million mold lawsuit pending in New York State Supreme Court
o management board and unit owner in Park Avenue sued the building’s architects, engineers and developer, alleging that mold had caused property damage and health problems.
2005
" Dicker vs. the Housemaster, Dismissed
o Housemaster & Charles Hennessy cleared of negligence and breach of contract.
o Defendants applied to the Court for an order dismissing the complaint pursuant to CPLR §3211 (a)(1), asserting the existence of a defense based upon documentary evidence.
North Carolina
" General Description of Reoccurring Cases
o Lawsuits filed against school districts in North Carolina due to the presence of mold in the schools that allegedly caused students to develop respiratory or other health problems
o Several of these cases involve multiple plaintiffs and multiple schools.
2004
" Official Title Unknown
o Employees at IBM’s North Carolina research campus filed a lawsuit against the company, alleging health issues caused by the presence of mold in the work environment (Kirk, 2004).
2005
" Hutchison vs. Hornaday Construction Co. (Official title unknown)
o Jean Hutchinson is suing the house builder, Hornaday Construction Co, and two subcontractors, Suntree Landscaping Inc. and Cape Fear Air
o Hutchinson hired Hornaday in March 2004 to build a $283,000 house.
o The house had water damage before it was completed, the suit says
o Hutchinson complained about the water problems at least 12 times during construction, according to the lawsuit.
o She told Hornaday that she was allergic to mold and showed symptoms of mold toxicity. Her doctors ordered her to leave the house. In June, Hutchinson had new health problems, and her immune system crashed, the suit says
Ohio
" General Description of Reoccurring Cases
o Lawsuits filed in Ohio due to the presence of mold in the schools that allegedly caused students to develop respiratory or other health problem
o Several of these cases involve multiple plaintiffs and multiple schools.
2006
" Official Title Unknown
o NBD International Inc, mold remediation company, closed down temporarily and called in a company to test its air after a series of allegations were raised by a disgruntled employee.
o Armour Applied Science was called in after someone sent e-mail and letters to authorities alleging problems with black mold and improper venting at the NBD International facility
Pennsylvania
2004
" Anderson vs. State Farm Fire and Casualty Co (Official title unknown), Dismissed
o Anderson alleged State Farm Fire and Casualty Co. did not pay or handle their residential water-damage claim and subsequent mold problem as required by the insurance agreement.
o Judge William H. Yohn Jr. of the U.S. District Court for the Eastern District of Pennsylvania dismissed the action with prejudice.
o The Andersons’ complaint alleged six counts: breach of contract, bad faith, negligence toward minor plaintiff Ryan Michael Anderson, negligence toward minor plaintiff David Michael Anderson, personal injuries to plaintiff Kathleen B. Anderson, and personal injuries to plaintiff Kathleen F. Anderson.
o State Farm alleged that the breach-of-contract claim failed to state a valid claim under Pennsylvania law and was time-barred by the limitations period.
Texas
2001
" Official Title Unknown, awarded $32 million, reduced to $4 million, later settled
o Texas couple, Melinda Ballard and Ron Allison
o Awarded $32 million because of mold damage to their 22-room mansion
o Farmers Insurance Co. was required to pay the award, along with $1.4 million in remediation costs before the jury verdict.
o Amount later reduced to $4 million
o Subsequently settled for an undisclosed amount
o following the initial verdict in this case, mold damage claims in Texas increased by more than 1,000 percent
o Described by some as “legendary”
2003
" Fiess vs. State Farm Lloyds, Dismissed
o Houston federal court deemed State Farm’s mold exclusion ``clear and unambiguous’’ and dismissed the plaintiffs’ claims for statutory and common law bad faith
" Ballard et al. vs. Fire Insurance Exchange, $32 million, later reduced to $4
o Considered landmark case
o awarded against Fire Insurance Exchange, a member of the Los Angeles-based Farmers Insurance Group, to cover mold-related damages to Melinda Ballard’s 22-room Dripping Springs, Texas, home.
2004
" Official Title Unknown, $15 million settlement
o Three years after two San Benito campuses were rid of mold, the company that installed the district’s heating and cooling systems has agreed to pay $15 million
o A statement was made that no mold was found in any of these schools and that the school board has not done any mold remediation over the last 2 years since moisture concerns were raised.
o Company claims case was shaped by the district’s mold consultant, Assured Indoor Air Quality who gained millions of dollars to assess the cause of moisture in the schools and resolve the problem
o settlement falls short of the $180 million in damages and attorney fees that the school district was seeking in a lawsuit that was headed to trial
Washington
2004
" Gifford v. Matejka, Dismissed
o Court held that expert testimony regarding both the presence of mold in the home, and the plaintiff suffering health effects while in that home, is sufficient evidence of causation to defeat the defendant’s summary judgment motion.
24 million settlement between builder and the owners
Trinity Homes and Beazer Homes, its parent, agree to fix about 2,000 houses. Oct. 21 - A Hamilton County judge Wednesday approved a $24 million settlement between an Indianapolis home builder and the owners of more than 2,000 houses potentially affected by moisture and mold.
3 AWARDED $375,000 IN LAWSUIT OVER MOLD
The Sun - Baltimore, Md.
A Circuit Court jury awarded $375,000 yesterday to three city residents who had sued the owner, alleging that mold in their building created an unsafe living/working environment, according to court documents and their attorney.
The lawsuit, filed in February 2005, said that the units had water leaks, standing water and mold since the late 1990s. The suit sought $3.2 million for residents Louise Bills, Mary Roy and Johnnie Pratt.
Scott E. Nevin, an attorney who represents the plaintiffs, said problems with water leaks and mold were documented as early as 1998.
Nevin said that inspections by a private contracting company in 2003, 2004 and 2005 found “standing water and mold growth” that he said went untreated. Nevin said that in 2003, inspectors found the roof leaking in 14 places and 25 air-conditioning units not working.
Now you’re bringing up another subject, Mold is not a WDO, Fungus is, are you saying now that every Home should be inspected, by Home Inspectors, for Wood Destroying Organizms/Insects? The same for Radon?
No, but every home inspector has a duty to alert his/her client to these issues, even if the inspector does not offer such services.
Again, ask Lorne Steiner to post here and explain.
Since when is Lorne a mold expert?
There are pages and pages of information about mold here and in the archives from an expert, Caoimhín P. Connell.
That’s what I do, right along with the warnings about the danger of Mold etc. I can better defend any referral I make to a LIcensed Professional Mold Inspecion/Remediation Company than I can any simple Air Sample I do that may or may not pick up all the mold in the Home.
Where is the Home Inspector part of this story???
I’m glad I wasn’t the idiot who may have sent a sample to a lab for this lawsuit, he’s probably living (with) mold under a bridge down by the river, after he lost everything defending himself…
I think it’s just general info Brian.
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I believe you are correct Mario. But it is general information that does not support Nick’s premise.
Again, (copy this post and paste it to your screen over and over until you read it), ask Lorne Steiner. He knows of a home inspector who said he didn’t test for mold, doesn’t offer mold, wants nothing to do with mold… and still got sued out of business for not telling his client why he should test for mold.
Dale, Lorne regularly attends court cases where inspectors and mold is involved. Why would he have to be an expert in mold (as you say) to tell us about it? Explain.
I know someone who got sued for testing for mold the way ProLab recommends. He lost about $200,000.00
Nuff said.
Dale
How does Pro-Lab recommend testing?