From the Technical Expert

Rip out of shower wall looking for moisture intrusion and resultant mold
The rush is on. Everyone wants to make hay with mold or else distance themselves from liability. Insurance companies are already writing mold exclusions in their policies, especially since there have been some high settlements. Attorneys are now giving mold seminars. In Las Vegas at one attorney's convention, a huge banner was mounted behind the speaker's dais displaying "MOLD IS GOLD." Another seminar was titled "How to be a Killer Expert Witness in Toxic Mold Litigation." Tenants are now being required to sign forms stating they have inspected and not seen any mold present and then it becomes the tenant's responsibility to inform the owner if they see a constant source of moisture that would lead to mold.

Section of wood flooring removed for inspection
Construction defect litigation probably deals with more mold issues than any other practice area. It has been said that there is water damage on every construction defect case. This backdrop makes construction defect litigation fertile ground for mold issues. Roof leaks, window leaks, plumbing defects, drainage problems, grading problems, and any other source of water intrusion can trigger a chain reaction of events that can ultimately lead to high-stakes litigation.

The New York Times magazine ran a cover story on toxic mold last year, and so has the Los Angeles Times. Just about every news outlet in the country has chimed in. You can guess the reaction: insurance industry: panic; real estate industry: more panic; trial lawyers and toxic remediation consultants: "You know, this economy suddenly doesn’t look so bad." (2)

I have been doing construction defect inspection since 1973, and have not been involved in mold related issues until 2002, when I was retained for 4 inspections. Two were ceramic tile showers and two were wood flooring with mold issues.

Moisture Equals Mold

Mold produces tiny spores to reproduce. Mold spores waft through the indoor and outdoor air continually. When mold spores land on a damp spot indoors, they may begin growing and digesting whatever they are growing on to survive. When excessive moisture or water accumulates indoors, mold growth will often occur, particularly if the moisture remains undiscovered or untreated. There is no practical way to eliminate all molds and mold spores in the indoor environment.

The way to control indoor mold growth is to control moisture. (3) For mold to grow, it needs a food source such as wood, paper, etc., a source of moisture and a place to grow.

Testing for moisture in wood underlayment
PELs are permissible exposure limits set on potentially dangerous materials such as chemicals/solvents. Since mold issues are so difficult to categorize and analyze (there are tens of thousands of types) and the concentration that affects each individual are uncertain, PELs have never been established for mold related issues. According to the National Wood Flooring Association (NWFA), no scientific studies have been performed to date that establish a direct relationship between mold contamination and health impacts. As a result, no doctor or health official can establish what levels of mold are safe or unsafe in a home, a school, or office building.

The California Toxic Mold Protection Act of 2001 requires the California Department of Health Services to consider the feasibility of adopting permissible exposure limits to mold in indoor environments. This law also imposes disclosure requirements in the sale, transfer or lease of real estate property.

Another piece of legislation is housing bill H.R. 5040, the United States Toxic Mold Safety and Protection Act. This bill will not only attempt to establish guidelines and identify conditions that facilitate indoor mold growth but will also address mold inspections for multi-unit residential property that is purchased or leased using funds guaranteed by Uncle Sam. Title VI will create a National Mold Insurance Program by FEMA to protect homeowners from catastrophic loss.

As mentioned; there is no practical way to eliminate all molds and mold spores in the indoor environment; the way to control indoor mold growth is to control moisture. Therein lie our problems. We are installing wood floors on grade subject to moisture intrusion. Don't we all see cupping? And sometimes black spots? How do we handle the shower situation?

Stachbotrys mold is a buzzword for litigation. It is a green-black mold that can grow on material with high cellulose content such as wood flooring, sheet rock, etc. For example the black mold found between bathroom tiles is not Statchy. Statchy can only be positively identified using mycologists through a microscope exam. (4) This is not a tempest in a teapot. This can have a drastic effect on your business. For example, losses in mold claims in Texas were $853,000,000 compared to $151,000,000 the previous year. Insurance company premiums for property damage claims have risen from 6 percent to 15 percent.

As I have mentioned time and again, make sure you have a dry slab before you install and avoid being caught up in these lawsuits. They are coming.


(1) How to be a killer expert witness in toxic mold litigation seminar

(2) The Straight Dope, Oct. 11, 2002, Cecil Adams

(3) U.S. Environmental Protection Agency Indoor Air-Mold/Moisture

(4) National Wood Flooring Association Legislative Update