NY Atty on mold

[Guest guest]

GlobeSt. com - New York,NY,

http://www.globest.com/upclose/upclose/152467-1.html

If the upside of Green Building is such trophies as Manhattan's

Hearst Tower, the downside has got to be the dysfunctional

environment, the space that fails to support proper health, well-

being and productivity. J. Pfeffer is a partner in the New

York City-based law firm of Arent Fox, and his practice focuses

largely on the construction industry, wherein he represents owners,

design professionals and developers. Pfeffer says that with tens of

thousands of mold-related cases out there, the issue is quite

literally nothing to sneeze at, and the solution--uniform

legislation based on scientific proof of a link between mold and

health--is still far off. But he does have a fix for owners who want

to protect themselves, and in an exclusive interview, he lays it out

for us.

GlobeSt.com: What does it take to become an expert on mold?

Pfeffer: Well, it really takes the joining of several practices of

law. When we're talking about mold and mold-claim issues, we're

really looking at several different legal issues. One is personal-

injury issues and how to handle someone claiming that they've become

sick from mold. Number two is property-damage issues and what

happens when someone says their property has been damaged because

they have some sort of mold or water-infiltration. Number three is

insurance. Mold and water-infiltration claims are really hot topics

in the insurance arena, and there's a lot of insurance language

written into most property and casualty policies concerning this.

GlobeSt.com: Who ultimately is responsible?

Pfeffer: It's rather a loaded question because, like any legal

hypothetical, it's going to be dependent on the facts. When we're

talking about mold, usually the property owner or manager will have

the first line of liability, but at that point it's also been passed

onto other individuals who can be held responsible for allowing the

mold growth and water infiltration to be there, such as contractors,

architects, engineers and other professionals who, as we say, have

their fingerprints on the issue. Sometimes you have tenants who

aren't taking care of their property pursuant to their leases and

other users and operators not doing what they should to inhibit mold

growth.

GlobeSt.com: In the cases you've been involved with, how do the

majority of decisions fall?

Pfeffer: There again you have to understand that mold claims fall

into one of the three categories I mentioned. So let's break it

down. When we're talking about personal-injury claims, we're talking

about a user of property who's complaining that they've become ill

as a result of breathing in mold spores. Those claims haven't been

universally accepted. In fact, most states, including New York,

currently hold that you can't prove scientifically the causal

relationship between mold and personally injury.

GlobeSt.com: The point being that it could be from any number of

sources?

Pfeffer: That's correct. Mold exists naturally in our environment.

In fact in numerous personal-injury cases the defense counsel has

been able to establish that the mold-spore levels are actually

greater immediately outside the building than inside.

GlobeSt.com: And with respect to property damage?

Pfeffer: That's a totally different scenario. Here we can have

several typical fact patterns. One fact pattern that is common is in

new construction or in the renovation of an existing building when,

during construction, water enters the building. Once it does it's

very hard to get out, and at that point you have a real opportunity

for mold spores to grow.

No one wants mold in a new building, and very often the construction

contracts have provisions that will require contractors to do things

to stop mold growth. So in a nursing home or hospital or condominium

you have a real issue because you have to get it out, and you have

to get it out quietly and carefully so users feel comfortable that

the building is safe.

These sorts of claims come in a few different ways. One is where you

have an owner claiming against a contractor or design professional

that they did something or designed something that allowed water to

enter and there was subsequent mold growth. The claim looks to the

contractor or design professionals to pay for the cost of

remediation and clean up.

The second type of claim is where you have a user suing a developer

to clean mold up. Very often, since the developer isn't building the

building, they'll try to pass that claim back to the contractors or

design professionals. So that's construction. When we're looking at

property damage with respect to existing buildings you can have the

same sorts of claims.

GlobeSt.com: Can you quantify the problem in dollars?

Pfeffer: There have been extensive cases across the country--

probably tens of thousands of cases--dealing with mold-related

claims. There have been recorded cases where students of a school

district or employees of a court sue for hundreds of millions of

dollars in personal injury and property-damage claims. Mold

represents a significant potential liability against property owners

and managers.

And what's really important here is that when there's a mold claim

against a property owner or manager--whether it's valid or not--it's

very important from a business standpoint to handle it properly to

avoid litigation down the road.

GlobeSt.com: And what does handling it properly mean?

Pfeffer: There are several ways to handle a mold claim. A

responsible property owner or manager will quietly inspect the claim

and try to determine the cause, if in fact mold exists, and try to

repair the issue. As I said, in New York, the courts have not looked

favorably on personal-injury claims, which is a nice safety valve

currently, although that might always be the case. That could always

change.

GlobeSt.com: Is there anything in the political climate that could

force that change?

Pfeffer: Yes and that's a good point. As of now there are no

specific federal regulations related to mold. There are certain EPA

and OSHA regulations requiring buildings to be clean and maintained

properly, but nothing specific to mold, and there are guidelines

about how to clean up mold and what do when you have an occurrence,

but there are no federal requirements.

GlobeSt.com: And at the state level?

Pfeffer: Several states have enacted legislation targeted to mold.

In 2001, California enacted the Toxic Mold Protection Act, which

went into effect in 2002. Essentially, the act requires that certain

designated experts will evaluate the health effects and eventually

try to enact some criteria. As of now they're still studying the

effects. It's the same in New York, where we have the Toxic Mold

Task Force Act. It's similar to California but not so broad. It

requires certain experts designated by the state to assess--and this

is important phraseology--based on scientific evidence, the nature,

scope and magnitude of the adverse environmental and health impacts

caused by toxic mold.

GlobeSt.com: This might have positive repercussions for tenants

thinking about a lawsuit.

Pfeffer: Absolutely. The task force is supposed to report back in

the coming months--although in practice it's really going to be

years--to the governor and state legislature about what they believe

the magnitude of the mold impacts will be based on scientific

evidence.

GlobeSt.com: To what extent has the issue been accelerated in the

green awareness push?

Pfeffer: When we're talking about building green and LEED standards,

we're talking about using certain materials in a building that not

only make the building more efficient but more effective in its

relationship to the environment. We've been very careful to include

provisions in our agreements with contractors and design

professionals wherein they are required to progress the work and

protect the work from water infiltration and mold-related events,

and if there is an event to report it back confidentially to the

owner so it can be handled quickly, properly and quietly.

Over the past 10 years property owners and managers have learned how

to handle these claims with a strong business sense in that they are

quick to respond. The common wisdom is to get that manager out there

to inspect the problem and hopefully remedy it quickly and keep that

building safe.

[Guest guest]

There it is again, that inaccurate statement about New York State..

Boy, they must really be afraid of the implications of that recent decision

to allow Dr. Shoemaker's testimony...