Determining Mold Culpability

By Daniel Woody | August 5, 2002

A recent article in The Cincinnati Enquirer perfectly (albeit accidentally) illustrates how vexing the toxic mold issue can be, how stridently companies and industries try to protect themselves from its consequences, and how difficult it is to determine who is truly to blame.

The article discussed faux or synthetic stucco.

According to the article, synthetic stucco is “the nation’s most popular commercial wall covering; one study says it’s used on more than one in five new buildings.” It is also being blamed increasingly for toxic mold infestations because it “traps and repels water equally well;” saturated building materials, of course, make prime breeding grounds for toxic mold.

In the article, insurance companies said they were either going to stop providing liability coverage or charge drastically higher premiums for builders who use synthetic stucco. The building material industry discussed how the problem was with the installers, not the synthetic stucco. Contractors who love working with the material talked about how they must either stop using it or find an insurance carrier who will cover them (usually at a higher premium). Homeowners, the article explained, must either pay the higher cost of real stucco or find an alternate material.

This kind of finger-pointing, “bad and worse” alternatives and downright uncertainty is, it seems, par for the course when it comes to toxic mold situations. It has become a three-part play of discovery, remediation and determining culpability. And it is sending shock waves through industries ranging from insurance carriers, building contractors and material manufacturers to architects, HVAC contractors, maintenance providers and law firms.

A toxic mold primer
The first act in the three-act toxic mold play is, in fact, discovery of the problem, and the exhibition of symptoms by building occupants is usual the first step. When enough people complain, ownership investigates and toxic mold is discovered.

In most instances, ownership moves immediately to the second act—remediation. This can be a minor inconvenience or a major ordeal, depending on the problem. We have seen the problem be as minor as the demolition and reconstruction of a single room and as major as a brand new school building being unoccupied for a year.

But this article deals with the third and final act of the toxic mold play: determining culpability.

The cast
The biggest distinction to make at the outset is between new and older buildings. In new buildings, the “cast” that can be held responsible for toxic mold problems generally includes the building owner, architect, engineer, general contractor, construction manager, suppliers and individual trades (carpenters, drywallers, plumbers, etc.). In old buildings—those built, say, more than 10 years ago—the building owner is usually the entity to which blame is assigned unless renovations or other work has been done recently. After all, the building has been fine for 10 or more years, absolving most of the other cast members.

Follow the water
The one truism about toxic mold is that it simply can’t exist in the absence of water. So, determining culpability is as easy as finding out where the water came from or is coming from. Like most things, though, that’s a heck of a lot easier said than done.

Toxic mold problems in older buildings are most likely caused by water intrusion as opposed to faulty building materials. The “usual suspects” are roof or plumbing leaks and ground drainage problems. They’re fairly easy to identify and the remediation is usually straightforward. Again, this holds true unless there has been recent renovation work or equipment maintenance or replacement.

In new construction, though, following the water can be difficult if not impossible. Here are three toxic mold culpability scenarios that are pretty common:

1. The Slam Dunk
There are some instances where the culpability is easy to establish. The classic example is when an architect or engineer specifies a building material or schematic and someone—usually the owner—doesn’t follow the specifications. Obviously, the architect and/or engineer isn’t responsible; their recommendations weren’t followed. Downstream, the general contractor, construction manager, suppliers and individual trades because they were simply following orders. The blame rests squarely with the person who changed the specs.

2. The Free-for-All
On the other side of the spectrum is the situation where there were so many mistakes made, it’s virtually impossible to figure out who or what combination is to blame. The HVAC system was poorly designed, the craftsmanship was shoddy, the materials sat out in the rain for two weeks, the roof wasn’t done in time, you name it. And, yes, this does occasionally happen. In this case, everyone’s going to get nicked, especially those with the deepest pockets.

3. The Blame-by-Percentage
Most often, though, the cause of and culpability for toxic mold infestation falls somewhere between these two extremes. Usually, some of the cast members can be exonerated. From there, the remaining cast is forced to share the blame and their culpability is expressed as a percentage of the total damages. Assigning blame in these instances often requires the Wisdom of Solomon.

If we were to truly assign blame, though, we would almost always point to the entire construction paradigm as the culprit. Today’s construction schedules are designed to maximize profits much more than they are designed to build buildings free of toxic mold problems. These schedules simply don’t allow any latitude, and that’s trouble waiting to happen.

But at some point, the dominoes have to stop falling. The roofers get behind schedule and the building doesn’t get dried in. The drywall supplier makes his scheduled delivery, but instead of being in a dry building, it sits out in the rain. The roof still isn’t finished, but the drywallers show up on time; they have five days, and they have to be at the next job. They hang the wet drywall. Mold develops, and the nightmare begins.

The scenarios can play out in any number of ways, but the bottom line is that the construction business in this country is reacting rather than being proactive. The simple errors made in these two scenarios can lead to untold millions of dollars in damages. And, ultimately, it is the fear of being culpable for those millions of dollars that will make the industry focus on preventing—instead of reacting to—toxic mold infestations.

Woody, a certified industrial hygienist and senior project manager with The Payne Firm, based in Cincinnati, has more than 15 years experience in the environmental, safety, and health industry. You can contact him at dtw@paynefirm.com.

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