Over the past several decades, the construction industry has moved to an airtight standard for new buildings in order to reduce heating and cooling costs. In such dwellings, however, where moisture gets in, it is less likely to air-dry. The resulting damp conditions create the perfect environment for mold growth.
High-profile mold-related lawsuits in the United States, as well as increasing public awareness of the mold issue in general, mean that more and more people know that when they fall victim to water ingress, they need to investigate their premises thoroughly for mold.
Counsel, public insurance assessors, insurance adjusters, building inspectors and lawyers should likewise recognize the need for a thorough investigation, including identification and analysis of mold levels and the potential effects on the structure of the home and the personal property inside it, as well as health effects on the occupants. The findings of this investigation should be submitted for review to experts whose work is peer reviewed and scientifically viable. The experts will be in a position to advise what is required to remediate the condition. Merely delaying the retention of appropriate experts can defeat an insurance claim or lawsuit resulting from mold.
Always report the existence of mold to the property insurer. Once the insurer is presented with a claim it must conduct a thorough investigation before it makes a decision on the insurance claim. Even if the insurer refuses to pay for investigation, the investigation results will assist in future litigation, including when it becomes a defendant.
The costs of investigating and litigating mold claims can be enormous. If you’re thinking of pursuing a mold claim in court, be aware that the complaints you may have suffered over a period of years will often require specialized medical reports in order to identify the causal links at trial.
Courts in Canada, like those in the United States, need the testimony of experts to determine if one or more parties are responsible for injuries or damages caused by mold. The defendants in any such action will seek to defeat the credibility of the experts based on the U.S. Daubert/Khumo Tire series of cases, in which the United States Supreme Court required trial courts to act as gatekeepers and prevent the testimony of experts who could not stand the test of science. The Daubert/Khumo Tire cases set standards generally accepted in Canada for determining the admissibility of “scientific” evidence.
Finally, before pursuing litigation over any mold claim, the parties and counsel should do a cost/benefit analysis to determine whether and how to proceed.
STP has just released Identifying Mold, a guide to mold claims and remediation in Canada, and also publishes the following guides related to insurance:
About the Author
Barry Zalma, Esq., CFE, has practiced law in California for more than 40 years as an insurance coverage and claims handling lawyer. He also serves as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud. Mr. Zalma serves as a consultant and expert, almost equally, for insurers and policyholders. He founded Zalma Insurance Consultants in 2001 and is the author of Insurance Claims: A Comprehensive Guide, Mold: A Comprehensive Claims Guide, and Construction Defects: Litigation and Claims.