Mold has not gone away. If anything, mold hysteria has increased in the last year. By some estimates, about 9,000 mold cases have been filed to date, and insurers are running scared. Plaintiffs' attorneys continue to bring both property damage and personal injury claims, even though science has not established a cause-and-effect link between toxicity in humans and exposure to airborne mold. All this has builders, developers, and others in the housing industry deeply concerned about their potential exposure to mold-related claims.

Mold legislation has been proposed at state and federal levels, but there is little consensus so far. One such bill is federal H.R. 1268. This measure offers tax credits (up to $50,000 per instance) to help cover the repair/remediation of water- and mold-related property damage. It also provides funding and protocols to study the effects on human health, if any, related to exposure to mold.

Early action

In the meantime, lawsuits against builders and developers are mounting. In response, some large home builders have established procedures and guidelines for mold remediation. Smaller builders may not have formal mold remediation procedures, but they still must fix any source of water intrusion and immediately repair any apparent mold damage. Even more important, they all must learn how to keep the damage from happening in the first place. Some key construction details for preventing mold have been published in a previous issue of BUILDER (see Mold).

But it's one thing for a builder or developer to understand these measures--and another to ensure that subcontractors implement them. Project supervisors must inspect the work of subcontractors responsible for areas where water or moisture problems can occur, notably HVAC systems, window installation, roof and stucco installation, and painting and flashing. Even at the framing stage, common sense must prevail. Studs and other portions of the frame should be allowed to dry before the building envelope is sealed.

HVAC system installation and the sealing of ductwork have been especially troublesome. Improper installation can lead to condensation in attics, for example, which in turn can lead to water seeping down drywall into air return registers, potentially leading to mold growth. Including provisions in contracts with subcontractors that hold the contractor responsible for water and mold problems related to installation errors or the use of improper equipment would be worthwhile.

Under attack

Even with such measures in use, however, claims are rising. One example involves a case where our client was repairing water intrusion and mold damage in a home. The builder was within three weeks of finishing the project when the homeowner hired "mold counsel." After that, things went downhill. Although our client agreed to fix all legitimate problems under warranty, the homeowner, with counsel, began a judicial and public attack on our client's company.

First, the homeowner filed for breach of contract, negligence, and personal injury, as well as charges of conspiracy and violation of the civil RICO (Racketeer Influenced and Corrupt Organizations) Act. The homeowner's counsel then placed "notices" in the local paper, claiming to be looking for witnesses who could shed light on alleged development-wide mold problems. Additionally, the plaintiff's counsel sought and gained local television coverage. They then filed a complaint with the state Construction Industry Licensing Board, alleging shoddy construction and making personal attacks on the contractor.

Although this is not being handled as a normal construction defect case, it shows what can happen if the wrong people are involved in a mold complaint. Our client will address the legitimate aspects of the claims. But the more bizarre allegations and personal attacks, despite their inaccuracy, can cause negative publicity and adversely affect our client's business. As a result, we are evaluating mechanisms for affirmative relief against the homeowner for such damages.

Mold misperceptions

Unfortunately, attacks such as the one outlined above and other high-profile mold cases that have been picked up by the media have been exaggerated, creating a false sense of urgency with the public. It is common for mold growth to occur when certain materials get wet and are not dried out; it also can be relatively easily repaired.

It is on the so-called "personal injury" side that the hype is really baseless. Molds are fungi. They occur naturally, and there are over 100,000 identified species. While there has been a lot of negative press about "black mold" or "toxic mold," mold actually can be a good thing. Yeast is a form of mold, the flavor of blue cheese is a result of mold. While excessive mold under certain conditions may result in allergy-type symptoms in some sensitive individuals, many other types of natural airborne particulates, such as pollen, dander, and pet hair, can cause similar symptoms.

More hype surrounds the subject of mycotoxins, which can be produced by some fungi or molds, leading some people to conclude that the mold is toxic. However, there is simply no peer-reviewed scientific study that has shown a cause-and-effect relationship between exposure to airborne "black mold" spores, or any other kind of mold, and toxicity in humans. Furthermore, there is no permissible exposure limit to mold. While plaintiffs' attorneys and some of their so-called experts continue to make claims of health effects and personal injuries due to exposure to mold, proposed federal and state legislation urge that proper scientific studies are needed to determine if there even is a causal link between exposure to mold and an effect on human health. That is a commendable goal.

Another worthy goal of such legislation would be the regulation of so-called mold remediators and experts, who seem to be crawling out of the woodwork (presumably the moist woodwork) hoping to make their fortunes by portraying mold as the next asbestos.

Aim for avoidance

Whatever the legitimacy of mold claims, the best defense is a good offense. The best approach is to avoid litigation by addressing the homeowner's mold concerns, particularly legitimate concerns that appear to be related to a construction defect. Even when no such link exists, educating the homeowner about mold, moisture, and routine maintenance may not be a bad idea. In the final analysis, however, we can't prevent people from filing baseless claims. The hope is that ultimately such claims will be thrown out of court, and that the government will develop standards and regulations to control and eliminate frivolous litigation, as well as a procedure to address legitimate mold concerns.

To read about some new products designed to help builders fight mold, check out "Mold Off."

Matthew Coglianese is a partner in the Land Use and Environmental Department of the Miami law firm Bilzin Sumberg Baena Price & Axelrod. Contact him at or visit