Toxic Mold and Internal Pollution

Presented by:Joseph O. Collins, Jr.

Sick Building Syndrome

A product of “tighter” buildingsContaminents

Formaldehyde (foam insulation) Fumes (paint and adhesives) Asbestos Carbon Monoxide Bacteria (Legionnaire’s Disease) Mold

Sick Building Syndrome

Molds Thousands of types Most are harmless Stachybotrys (black mold) Penicillium

Sick Building Syndrome

Symptoms Headaches Rashes Respiratory ailments Immune system compromise Lung disease Death(?)

Case I – Remediation Responsibility

Remediation Locate source and cause of mold

contamination Determine nature and extent of

contamination Remove contaminated materials Eliminate and disinfect Repair

Responsibility – Causes of Moisture

Construction defectsProduct defect (I.e., “Drivet”)Design defectsDefective repairsPlumbing leaksActs of God (floods, wind blown water) Insurers (failure to timely recognize

claim)Property owner

Owner’s Delimma

Delays in determining responsibility of others

Delays in acceptance of responsibility by others

Delays caused by inability of others to respond to responsibility

Delay exacerbates problemsResponsibilities of others becomes

owner’s

Case II – Owner Liability

Owner’s Liability for Failure to Repair Time and moisture Responsibility for moisture vs.

responsibility for mold growth Exculpatory provisions in leases – no

help Disclosure to Purchaser Disclosure to Lessees Knowing conduct

Case III – Insurance

Property Insurance “All Risks” Coverage

Owner’s CGL InsuranceBuilder’s CGL InsuranceBuilder’s completed operations

coverage

“All Risk” Insurance

Water damage resulting from windstorm or hail

Water damage resulting from sprinkler leakage

Water damage resulting break or crack plumbing and appliance

“All Risk” Coverage Issues

Was policy in force?Plumbing and appliance leaks?14 day exclusion – “Continuous

or repeated”Failing design, workmanship,

or construction

Contractors’ CGL Coverage

Often excludes contractor’s own defective work – “business risk”

Pollution exclusionsNew mold exclusion

endorsements

Contractors’ Completed Operations Insurance

Part of CGL CoverageSimilar to Products Liability

InsuranceGenerally pollution exclusion

not applicable

OSHA

Air Quality InvestigationsOSHA jurisdiction over air

qualityBuilding owners and

employees