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GENERAL DISCUSSION Does your job make you sick? For some people, suffering from a malady known as sick building syndrome (SBS), this is literally true. Sick building syndrome occurs when building occupants suffer acute health effects associated with time spent indoors, but with no specific identifiable illness or cause. Complaints may correlate with a particular room or zone, or may be widespread throughout a structure. Problems result when facility managers operate or maintain a building in ways inconsistent with its original design or prescribed operating procedures, or from poor building design or occupant activities. Sick building syndrome symptoms include headaches; eye, nose and throat irritation; a dry cough; dry or itchy skin; dizziness and nausea; difficulty in concentrating; fatigue; and sensitivity to odors. SBS reduces worker productivity and may also increase absenteeism. While specific causes of SBS remain unknown, the following are contributing elements. These factors may act in combination or may augment other complaints, such as inadequate temperature, humidity, or lighting: Chemical contaminants from outdoor sources: Outdoor air entering buildings can cause indoor pollution. Pollutants from car exhaust, plumbing vents, and building exhausts (bathrooms and kitchens) can enter buildings through poorly located air intake vents, windows, and other openings. Combustion byproducts can also enter buildings from nearby garages. Chemical contaminants from indoor sources: Most indoor air pollution arises from sources inside the building. Adhesives, upholstery, carpeting, copy machines, manufactured wood products, cleaning agents and pesticides may emit volatile organic compounds (VOCs), including formaldehyde. Research shows that some VOCs can cause chronic and acute health effects at high concentrations; some are known carcinogens. Biological contaminants: e.g., pollen bacteria, viruses, and molds. These breed in stagnant water accumulating in humidifiers, drain pans, and ducts, or where water collects on ceiling tiles, insulations, or carpet. Biological contaminants can cause fever, chills, cough, chest tightness, muscle aches, and allergic reactions. One indoor air bacterium - Legionella - has caused Pontiac Fever and Legionnaires's Disease. Inadequate ventilation Remedies for SBS usually include combinations of: Increasing ventilation rates and air distribution and seeing that heating, ventilating, and air conditioning (HVAC) systems are designed to meet ventilation standards in local building codes. Removing or modifying the pollutant sources, which includes routine HVAC system maintenance; replacing water-stained ceiling tiles and carpets; banning smoking or providing a separately ventilated room; venting contaminant source emissions to the outdoors; using and storing paints, solvents, pesticides, and adhesives in closed containers in well-ventilated areas; using pollutant sources in low- or no- occupancy periods; and allowing time for building materials in new or remodeled areas to off-gas pollutants before occupancy. Air cleaning can be useful. Air filters are only effective at removing some, not all, of the pollution, however. Rains which frequently pummel parts of the U.S. may do more than cause sloppy commutes and inconvenience. They may promote the growth of dangerous molds, according to an industry trade group. Untreated water damage can cause fungi - sometimes toxic or allergenic - to sprout up, often unnoticed. It normally grows in dark, damp places. Most homeowners, or building owners, are unaware of what is lurking behind their walls. The most common areas for mold growth are water soaked wood, ceiling tiles, wall paneling, unpainted plaster board surfaces, cardboard boxes and stacks of newspapers. One insurance service recommends that homeowners do a complete home inspection after winter rains. Some molds have toxic qualities and can be dangerous. If there has been mold in the building and anyone experiences chronic coughing, chest congestion or anemia, visit your physician and try to determine the cause of the malady. Be sure and tell your physician that you may have been exposed to mold or toxins so that appropriate tests may be performed. Any time water penetrates a building, there is a potential for mold. Mold could potentially be blamed for respiratory problems, skin rashes, headaches, lung disease, cognitive memory loss and brain damage. Molds occur naturally in the environment, but some types of molds that produce toxins are found in concentrated amounts indoors, such as aspirgillus, penicillium, stachybotrys and arimonium. Excessive growths of these water-loving molds could be harmful. These molds need water, warmth and a food source to grow, such as buildings sealed so tightly for energy efficiency that areas dampened by a leaky roof or burst pipe never dry up. Some standard building materials such as cellulose-based sheet rock may provide nutrients for mold growth. Vinyl siding on an exterior wall can also prevent moisture from drying up, leading to significant mold growth on the back of interior wallpaper. Negligence claims have been filed against building owners and managers for not maintaining the property and against construction companies, architects, plumbers, roofers and waterproofers for defective design. The employees of a newspaper in California sued the landlord for failing to make repairs which in turn allegedly allowed several types of mold to grow, which they claim caused lung and sinus infections. In another California case, a condo association sued real estate developers, contractors and managers for personal injury and property damage allegedly caused by inadequate waterproofing that permitted toxic mold to grow.
WHAT IS MOLD? Molds are microscopic organisms, which are part of the Fungi Kingdom, that produce spores. Some, but not all, mold produces mycotoxins. Mycotoxins are poisons that cause an allergic response by sensitizing lymphocytes or generating antibodies. Molds, as most living things, need to consume "food" in order to survive whether it is in the insulation, wallpaper, drywall, etc. Molds require a moist environment in order to thrive. Molds typically breed in stagnant water accumulated in A/C ducts, drain pans, humidifiers, ceiling tiles, carpeting, insulations, and/or any place where water penetrates the home (e.g., under windows). Mold is often the result of roof leaks, shower pan leaks, and plumbing leaks. According to the Centers for Disease Control and Prevention in Atlanta, six varieties of mold are common in houses and buildings, and three can produce dangerous toxins. See Catherine Tapia & Constance Parten, MOLD in Buildings Creates New Frontier in Construction Defect Litigation, Definition of Pollution, Insurance Journal/Texas 26 (November 20, 2000). The presence of mildew or mold growth on walls, ceilings or furniture is a clear sign that a house may need to be professionally inspected. If the presence of mold is even suspected, especially after water damage, an indoor air quality ("IAQ") assessment should be undertaken. WHAT ARE THE HEALTH CONCERNS? Molds can and do cause health problems that range from simple discomfort to severe illness and thus depend greatly on the sensitivities of the exposed person. Exposure to molds can be more debilitating to people with existing respiratory ailments, newborns, the elderly, or anyone that has a suppressed immune system. Even perfectly healthy people can have adverse reactions when exposed to molds. Some symptoms of exposure to molds include chest tightness, cough, fatigue, shortness of breath, sinusitis, nose bleeds, skin rash, fever, wheezing and conjunctival irritation. ISSUES UNDER THE HOMEOWNER'S POLICY When mold infestation is found within a home, the problem has to be addressed as soon as possible. It is important that both the cause of the mold infestation (i.e., the water or moisture problem) and the mold infestations itself be remedied. The abatement process typically requires various construction contractors, engineers, abatement specialists, and often requires the homeowner to vacate the premises during the abatement process. So, is all of this abatement work covered under a Texas homeowner's policy?
(emphasis added). Although the rust, rot, mold, or other fungi exclusion would seemingly exclude coverage for mold infestation, the ensuing loss exception appears to give back coverage where the mold follows as a consequence of water damage. See Home Ins. Co. v. McClain, No. 05-97-01470-CV, 200 WL 144115 (Tex. App. - Dallas Feb. 10, 2000, no. pet.). The McClain case squarely addressed the mold issue and found in favor of coverage when the mold followed as a consequence to water damage. Of course, opinions may arguably conflict with McClain. Therefore, each claim needs to be addressed based upon its own separate facts by someone familiar with insurance coverage issues. Once mold or fungi is discovered and it can be established that the mold or fungi followed as a consequence to water damage, the issue arises as to what is covered under the homeowner's policy. Clearly, the water damage is covered. Thus, if water damages carpeting, walls, floors, furniture, personal property, etc., the policy will pay to repair the damage. The policy may also pay for the remediation of the mold. This includes the hiring of remediation contractors and any other personnel necessary to ensure that the mold and/or fungi is completely abated. Depending on the severity of the problem and the type of mold discovered, the residents may have to move out of their home during the abatement process. In such situations, the policy may provide a separate limit of coverage for additional living expenses: EXTENSIONS OF COVERAGE
The total limit for Loss of Use is 20% of the dwelling limit. The 20% however, does not erode the dwelling limit. The Loss of Use provision provides coverage for alternative living arrangements during the repair process and is designed so that the policyholder can maintain his or her normal standard of living. Additionally, the Loss of Use provision provides coverage for the costs of packing, moving, and storage of the house's contents during the repair process. A controversial issue is whether coverage exists to fix or repair the cause of the water damage. For example, assuming the water damage is caused by a defective roof, does the policy provide coverage to fix the defective roof. The answer is not entirely clear from the policy language. The policy does provide, in pertinent part, as follows:
Accordingly, as long as the cause of the loss does not fall within a policy exclusion, the policy may well pay for necessary repairs. See Employers Cas. Co. v Holm, 398 S.W. 2d 363, 367 (Tex. Civ. App. - Houston 1965, no writ). Again, this will probably be determined by the specific facts of the claims and the applicable case law of the state with respect to identical or similar facts. In Pena v. State Farm Lloyds, 980 S.W. 2d 949 (Tex. App. - Corpus Christi 1998, no writ), for example, the insurer paid for both the plumbing repairs and the fungal growth that ensued from the leaking water. Even assuming the policy does not cover the costs to repair the cause of the water damage, the policy may still provide for the costs incurred in locating the cause of the water damage. In the Holm case, for example, the court disallowed coverage for the defective shower stall, but allowed recovery for the cost of drilling through the shower stall and flooring to discover and trace the source of the leak. Moreover, the court permitted recovery for the costs of replacing the shower tile as it was found to be a necessary tear-out expense. Likewise, coverage exists for tear-our and replacement costs incurred in locating the source of the water damage. Again, the facts of each claim may be determinative of the coverage issues under each policy. MOLD IS NOT JUST A FIRST-PARTY COVERAGE ISSUE Mold claims are not restricted to first-party homeowner's claims. Negligence claims have been filed against building owners and managers for not maintaining the property and against construction companies, architects, plumbers, roofers and waterproofers for defective design and construction. In other words, the mold problem has spawned a new generation of construction defect and "sick building syndrome" cases. Thus, coverage under other types of policies may become an issue and each different type of policy will need to be examined for analysis of the facts of each claim and compared to the policy language under each policy. This becomes important for the potential defendant construction company, architect, plumber, etc. in determining whether or not their policy provides them not only with a defense to a claim, but also coverage if ultimately found responsible for damages. Coverage under a policy is also important to someone making a claim because without insurance coverage the ability to collect a favorable judgment may be impaired. |
SICK BUILDING SYNDROME AND MOLD COVERAGE ISSUES
2222 Saint Michael Dr
Texarkana, Texas (TX) 75503
