Mold In Residential Construction

Mold In Residential Construction

by

Richard Salpietra, Esq

The next big wave of toxic tort litigation has arrived. Unlike past toxic torts, such as asbestos, chemicals, birth control devices, breast implants, carbon monoxide, lead and pesticides, mold is a natural toxin. It is not a product produced by a manufacturer. Mold is a naturally occurring substance which is classified as a fungus. Over one hundred species of mold have been found to be dangerous to human health. Mold reproduces itself through spores and can live and grow on almost any type of construction material.

In residential construction, mold can form on a number of different materials, in a multitude of places, and cause serious ill health effects. For mold to exist, there are three basic requirements: (1) water or moisture; (2) nutrition of some type; and (3) oxygen. It is interesting to note that although mold does not need light to grow, it does not grow in just dark spaces. For mold to exist, the ambient temperature needs to be between 35 and 100 degrees fahrenheit.

Exterior Water or Moisture Intrusion

In residential construction, water or moisture can enter the building in a number of ways. Mold needs either direct contact with water or moisture greater than twenty percent to exist. Wood typically found in the framing in residential construction consists of less than nineteen percent moisture content. The limited resources of American lumber, and the aggressive approach of the construction industry to rapidly harvest more lumber, has created the "greening" of lumber in residential construction. This less mature wood tends to possess a higher moisture content.

Water may intrude into the building by leaks in the windows or the flashing around the windows. It may also enter the building through leaks in the roofing material or flashing between vertical surfaces and roofing material. This would include an area where a first floor roof abuts a second story wall, and also where a chimney protrudes through a roof. Flashing made of galvanized iron, lead or copper is normally used to shield any break in the integrity of the roof structure. Any one of these places might allow for the intrusion of water.

Water may also enter a building through improperly directed irrigation. Poorly installed irrigation can cause drip lines to direct water against the building. Moreover, improper drainage or grading around the perimeter of a building may cause water to flow towards the building. Also, irrigation may spray directly onto a building.

Balconies are another place where water can enter a building. The same type of lead, copper, or galvanized iron flashing at roof penetrations is also used at balcony locations. As such, the potential for water intrusion at these points is just as great as at roof locations. Exterior doors are additional potential places for water intrusion. Planter boxes against a residence are another common area for water intrusion. The back side of the planter is where one would typically find mold growing on the inside of the house. Ventilation penetrations on the roof, as well as exterior walls, also allow for water to intrude into the wall cavities. Furthermore, any wood framing close to the earth allows for water intrusion.

The most notorious and least considered area of water intrusion is simply a stucco wall. Stucco is not an impervious material and requires a weatherproof building paper placed behind it. If the paper is not lapped properly, wind driven rain can be pushed right through the stucco and form on the back side of the paper. This moisture and water collects, runs down the wall, and can enter into the wall cavity. Also, a weep screed--a small metal band at the bottom of the stucco wall that allows this trapped moisture to escape--is commonly clogged by poor stucco application or dirt infiltration. With a blocked weep screed, it is only a matter of time until stucco walls will retain moisture or water, and mold will grow.

Interior Water/Moisture

Interior water intrusion can result from plumbing leaks in attic spaces, interstitial floor spaces or wall cavities. Sometimes, even over-watered plants and indoor fountains can cause excessive moisture. With the attempt to reduce cooling and heating requirements, and as an energy savings method, many new residential buildings are constructed with dual or sometimes even triple glazed windows. Although this helps to diminish condensation, many buildings still experience excessive condensation on the interior surface of the windows. This occurs when the ambient temperature inside is considerably higher than the ambient temperature on the outside of the
building.

The condensation normally forms along the sill or bottom of the window and can leak back into the wall cavity or down into the drywall or plaster board. All of these conditions can create the right conditions for mold to grow. Condensation lines in attic mounted heating, ventilating and air conditioning (HVAC) units can also be a source of condensation. Well insulated buildings protect against loss of cool air on the inside of a building in the summer or heated air in the winter. Unfortunately, it can also cause moisture to be "locked" into the building. Steam is another type of moisture that can form on the inside of a residential building, specifically in obvious places like bathrooms, showers and kitchens. This problem is exacerbated by the lack of proper ventilation. This includes ventilation air ducts that have become clogged, kinked, or are not working properly.

Another area of water intrusion in residential buildings is through the concrete slab. Most residential construction in the West consists of a poured concrete slab placed directly on a sand or gravel compacted underfill. The obvious point of water intrusion in a concrete slab is through cracks. Even hairline cracks that penetrate through the concrete can be a source of water or moisture intrusion. Moisture penetrating through the slab can result in a variety of different conditions.

A slight yellow or brownish staining at the joint or grout lines of a marble or tile floor can sometimes be an indication of moisture penetrating the slab. Also, yellowing of vinyl flooring can be an indication of moisture. Cupped or bowed wood flooring is yet another indication of moisture penetration through the concrete slab.

Interior moisture can also be the result of excessive cleaning of carpeting. This is exacerbated by conditions of poor ventilation. Even plastic chair mats and throw rugs can trap moisture coming up through the concrete slab or from damp, steam-cleaned carpets.

Nutrition Sources

The second element that is required for mold to form is a type of food or nutrition source. Mold typically grows on some type of cellulose. Fungi actually use cellulose or lignin of wood as a food source. These food sources can be found in a number of construction materials, including drywall or gypsum wall board, all types of wood, adhesives, ceiling tiles, insulation, paint, and plywood. Mold can form on most types of materials found within a residential building. These include fabrics, rugs, carpets, clothes, furniture and almost all other materials used in construction, other than stones, ceramics, marble, glass and plastics.

Mold Toxicity

Some molds are harmless, while others, in rare cases, can be fatal. Mycotoxins-— mold that are dangerous to humans and animals-- are organic compounds that are naturally produced by numerous types of fungi. Over 50 fungal compounds are believed to be the cause of mycotoxins. The most common are stachybotrys, aspergillus, penicillium, and fusarium. Once a mold begins to grow, it does not require much water or moisture to continue growing. In fact, just typical humidity in the air may be enough to keep a colony of mold growing and multiplying.

The toxins created by these forms of mold can be insidious. They can cause symptoms as simple as skin itch, throat irritation and coughing, and other respiratory problems. However, they have been known to cause more serious medical problems including memory loss, brain injury, fibromyalgia, and chronic fatigue. The mycotoxins can apparently also cause multi-organ effects including diarrhea and nervous disorders, weight loss, cardiovascular problems, amnio-depression, hemostatic derangements, skin toxicity, decreased reproductive capacity and bone marrow damage. Mold can also exacerbate pre-existing health conditions such as asthma. Mycotoxins can enter the body through contact with the skin and through inhalation. Inhalation can cause a direct and more potent exposure to the mold.

Testing for Mold

Various tests detect for the presence of mold. Since testing for mold cannot create mold where it does not exist, a false positive test result is rare.

Air testing is normally done through a Biotest Air Sampler. This method tests the volume of air through an instrument which is run for a period of time and then the mold organisms are counted. The breathing zone tested is approximately one foot below the mouth to one foot above the mouth. This represents the "breathing zone of an individual" from which air is normally inhaled. This area can be expanded to include one foot above and below the mouth when the body is in a reclined position as in a bed, or in a seated position as when eating or watching television. An air test by itself may not detect particular molds, like stachybotrys, which are fixed to surfaces and do not become airborne unless disturbed.

A swab test is usually done in a bulk or tape method. This testing method includes taking a direct sample of the mold in a particular area by bulk removal or by placing a piece of tape over the mold and adhering the mold to the tape for further study. Swab tests may detect mold with sticky spores, such as stachybotrys, that are not normally airborne.

Ordinarily, there should be no fungi growth in an indoor residential environment. If an air or swab sample is taken, the results should show that any presence of mold or fungi is lower on the inside of the residence compared to the outside of the residence. Any mold found within a residence should also be found outside the residence. Should a mold be found on the inside and not on the outside, it is a strong indication that there is a harmful level of mold within the residence.

Health Standards

To date, there are no federal or state standards which set a permissible level of mold within a habitable space. However, guidelines or recommendations are available. Although a wealth of scientific information is emerging with respect to this issue, "general industry standards" have not been created. There are, however, three separate bills currently pending in the California State Legislature dealing with this issue.

Senate Bill 732 and Assembly Bill 178 both deal with defining mold infestation, exposure standards and remediation. Senate Bill 732 was passed through the State Senate and is currently in the Assembly. Assembly Bill 178 has yet to pass through the Assembly.

Assembly Bill 284 provides for the ongoing study and monitoring of mold related health complaints. It was passed through the Assembly and is in the Senate. A review of these Bills is beyond the scope of this article; however, the author strongly recommends a review of these bills by any practitioner in this field.[1]

Mold Coverage in Homeowners' Policies

Personal injury and property damage caused by mold is generally covered by the standard homeowner's insurance policy if the mold develops as a result of a covered loss. The standard policy states:

We do not insure, however, for loss:... 2. Caused by:... e.(1) Wear and tear, marring, deterioration ... (3) Smog, rust or other corrosion, mold, wet or dry rot : ... (5) Discharge, dispersal, seepage, migration, release or escape of pollutants ... [Emphasis added].

When a mold claim is made, many insurance companies will cite similar provisions in order to deny an insured's claim.[2] However, if there was a construction defect which allowed the water intrusion that caused the mold to grow, a claim may be made against the builder or developer.

Admissibility of Evidence

The law concerning the admissibility of scientific evidence to support a claim for personal injury or property damage is still developing. In most jurisdictions, the court first determines whether the expert testimony is based upon a scientific principle that has gained general acceptance in a particular field. The plaintiff must usually establish medical causation for a personal injury to a degree of reasonable medical "probability." (See, e.g., Cottle v. Superior Court (1992) 3 Cal.App.4^th 1367, 1384; 5 Cal.Rptr.2d 882, 892 (1992).)

In a mold case, the plaintiff often argues that one should not breathe in that which one would not ingest. Typically, people will not ingest moldy food, and it is argued that they should not breathe moldy air or come in contact with moldy materials. The defendant will often argue that there is no causal link between plaintiff's injuries and mold, the plaintiff is a hypochondriac, the scientific evidence is "junk science," and there is yet to be proven a causal link between exposure to mold and personal injury. Particularly in residences, it is not scientifically supportable that only one member of a family would become sick.

In the recent case of Mondelli v. Kendel Homes Corp., 262 Neb. 263, 631 N.W.2d 846 (2001), the Nebraska Supreme Court dealt with this issue. In Mondelli, the homeowners sued both the city and the contractor who built their home. Plaintiffs sought to recover for injuries from exposures to mold spores and fungi that were present in their home due to construction defects. Among other things, the supreme court found that the trial court abused its discretion by excluding plaintiffs' expert's testimony. The court further held that the evidence supported a finding that the contractor failed to build the home in a workmanlike manner.

The Mondelli court set forth four factors which govern the admissibility of expert testimony in such a case; they are: (1) whether the witness qualified as an expert; (2) whether the testimony is relevant; (3) whether the testimony will assist the trier of fact; and (4) whether the probative value of the testimony, even if relevant, is outweighed by the danger of unfair prejudice.

After considering the plaintiffs' expert's testimony in light of the four-part test, the court concluded that the
testimony was admissible. The expert witness provided a list of publications which she had read, and stated that it "added to her knowledge of the risk of fungi and human health. "The court stated that if the publication that was "relied upon by an expert is of a type reasonably relied upon by experts in a particular field in forming opinions or inferences, the facts or data need not be admissible in evidence." Mondelli, supra, at 273.

There was no evidence that the blueprints or construction design did not conform to the Local Code or the Uniform Building Code (UBC). However, the Codes do not require that blueprints and construction design meet industry standards. The Court held that the contractor could still be liable for defective construction, even if the plans and construction design met the Code and the UBC, if they did not meet industry standards. Therefore, the case was reversed and remanded for a new trial on the issues of causation and damages.

Aas and "Personal Injury"

A plaintiff claiming personal injury or property damage due to mold may assert a variety of causes of action. They include, but are not limited to, negligence, strict liability, professional malpractice, breach of implied and express warranties, constructive eviction, workers' compensation and violation of the Americans With Disabilities Act. They also include causes of action for breach of contract, fraud, failure to disclose in the sale of the property, nuisance and negligence per se if a statutory violation can be proved. Those parties that are typically sued include general contractors, architects, engineers, HVAC professionals, lessors, prior owners, real estate agents and brokers.

The recent California Supreme Court's decision in Aas v. Superior Court (2000) 24 Cal.4th 627, held that actions for strict liability and negligence involving defective home construction against builders of mass housing are limited to defects that result in personal injury or resultant property damage. No recovery is allowed for economic loss alone. Most plaintiffs' attorneys have been concentrating on the "property damage" portion of these cases. They have found it difficult to successfully make a claim for property damage under a negligence or strict liability theory of recovery unless there is actual resultant damage.

In a situation where one homeowner's unit has suffered a particular construction defect, which has manifested into actual damage, but another's unit has not yet experienced damage, the Aas court has precluded recovery by the homeowner who has not yet sustained actual damage. However, the economic loss rule may not apply if a claim is for personal injury due to mold. In other words, the builder may still be held strictly liable for an owner's personal injury due to mold if it can be proven the injury was caused by mold, and the mold was a result of water or moisture intrusion due to defective construction.

Moreover, the Aas Court did not preclude recovery under a theory of breach of warranty for latent construction defects, even when the defects have not resulted in actual property damage. In pretrial proceedings, the defendants brought motions in limine, applicable to all causes of action, to exclude evidence of any construction defect which had not yet manifested through property damage. The trial court granted the defendants' motion as to the tort claims only, and the Court of Appeal affirmed. Because the trial court in Aas had not precluded the plaintiffs from introducing evidence of economic damage in support of their breach of warranty claims, the Supreme Court had no occasion to address that specific issue.

The most recent case which cites Aas is Hicks v. Kaufman & Broad Corporation (2001) 90 Cal.App.4th 529. In Hicks, the homeowners brought causes of action for strict liability, negligence and breach of express and implied warranty. The defendants were the developer and general contractors. Plaintiffs sought to recover the costs of repairing and replacing defective concrete foundations under their homes. As in Aas, the Hicks court held that strict liability and negligence do not provide a remedy for defects which have not caused property damage (i.e., there is no recovery for defects causing only economic loss). In Hicks, plaintiffs' claims involved property damage in the form of cracked foundation slabs.

Although not all foundations in the development had cracked, plaintiffs, who had attempted to certify a class action, sued because some of their slabs had cracked. The reason for this is that the slabs were built with fiber-mesh instead of welded wire fabric or reinforcing bars. The fiber-mesh allowed wider cracks, which split the foundation into pieces. This allowed moisture to intrude into the house causing bumps in the flooring.

The plaintiffs also presented expert testimony based on observations and analyses showing that foundations containing fiber mesh, "will someday most likely crack badly." They further presented testimony that these cracks would cause problems such as insect and vermin infestation, bumps in the floor, premature wearing of carpeting, and damage to vinyl flooring coverings and ceramic tile. (See, Hicks at p. 773). The court in Hicks ultimately concluded:

If plaintiffs prove their foundations contain an inherent defect which was substantially certain to result in malfunction during theuseful life of the product they have established a breach of [defendants'] express and implied warranties. It is not necessary for each individual homeowner to prove his foundation has already cracked or split, or that he has suffered property damage as a result of the cracking or splitting. We see no reason why a homeowner should have to wait for the inevitable injuries to occur before recovering damages to repair the defect and prevent the injuries from occurring. (Hicks, 107 Cal.Rptr.2d at 773,italics added).

The appellate court concluded that the case should be remanded to the trial court to draft a definition of a class or subclass, if any. The Court also noted that manifest damage to a slab is not a precondition for class membership. The appellate court further instructed the trial court that privity with the defendant was necessary for recovery under an implied warranty theory.

What has yet to be decided by the courts is whether a homeowner should have to wait for the ill effects of toxic mold to occur before recovering damages to repair the defect which caused the mold. Using the reasoning of Hicks, if mold has formed in one unit due to a construction defect, the owner of the adjacent unit who has a similar construction defect should not have to wait for the ill effects of mold before bringing a construction defect action. It may also me argued that the mere presence of mold constitutes "property damage," so that the economic loss rule would not apply to a contaminated building.

Cases involving personal injury or property damage in mold litigation are just beginning to set legal precedent. Standards for the acceptance of the scientific evidence necessary to prove a causal link between mold and personal injury are getting clearer. Early investigation by competent experts knowledgeable about mold, its causes and its effects, should help to determine the direction that these suits will take. It should also help eliminate some of the uncertainty for plaintiffs who have suffered personal injury or property damage caused by mold. In conclusion, there may soon be a convergence of developing legal theories in construction and mold litigation. This should enable plaintiffs to overcome some of the obstacles set in their paths in jurisdictions that follow the Aas case.

Richard Salpietra is the principal of the Law Offices of Richard Salpietra. Mr. Salpietra is a licensed attorney, architect and general contractor in the State of California. He is also a licensed architect in Nevada and Florida. Mr. Salpietra's law firm's emphasis is on community association representation, real estate, construction, and land use litigation. Mr. Salpietra is on the Board of Directors of the San Diego Chapter of the Community Associations Institute and has been a past member of the American Institute of Architects, and the Building Industry Association. Mr. Salpietra is also Of Counsel to the Law Offices of Charles S. LiMandri, a firm whose practice includes complex toxic tort and environmental and construction-related litigation. Mr. Salpietra's firm is located in Rancho Santa Fe, California, and can be visited at www.salpietra.com.

Notes

1Copies of the Bills can be obtained from http://www.leginfo.ca.gov/bilinfo.htm

2 For a detailed discussion of insurance coverage for mold see Charles S. LiMandri, Insurance Coverage for the Epidemic of Mold Litigation Plaguing the Construction Industry, 22 CLR 315 (Sept. 2001).

Located in Rancho Santa Fe, California, the Law Offices of Charles S. LiMandri represents clients throughout the communities of San Diego County, including La Jolla, Del Mar, Encinitas, Carlsbad, Oceanside, Escondido, Poway, and El Cajon, as well as Los Angeles, Riverside, Orange, and San Bernardino Counties.