Risk Management Articles

Mold, Moisture and Million Dollar Judgments
By Peter Kuchinsky II and Glenn Schwartz

Lawsuits for construction defects and personal injury claims due to mold found inside buildings are being filed against builders, developers and subcontractors at an alarming rate. Mold, sometimes known as mildew or fungi, found in homes can cause property damage to structures and serious health problems to those that are sensitive to mold spores.


In order for molds to grow, they need water, warm air and a food source. These conditions are often found inside newly constructed and poorly maintained buildings as the result of a leaky roof, poorly installed windows and doors, broken plumbing pipes or any other source of reoccurring water problems. Due to energy codes increasing a building's air-tightness, many new buildings lack natural ventilation, and areas exposed to reoccurring moisture problems never dry out completely. Combine this with heat, humidity and a food source, and conditions are ideal for mold growth.

Many of the building materials used in today's construction, such as drywall, carpet, fiber board siding, OSB particle sheathing and thermal insulation provide the cellulose-based nutrients that mold thrives on. Due to ideal growing conditions, the air tightness and energy efficiencies of newer homes and an abundant food source, mold spores can be released in concentrated amounts into the indoor environment at higher levels than found outside. Once mold spores become airborne, they can easily spread throughout a building, increasing the amount of damage, effects on human health and cost to remove the mold damage from the structure. Across the country, homes, school buildings and courthouses have been closed because of mold and the related illnesses suffered by residents, students and workers.

Construction defect attorneys and the environmental experts they hire to investigate mold growth link many of the problems to defective design by architects or lack of proper workmanship by builders and contractors such as roofers, framers, plumbers and waterproofers. Recent court settlements on mold related issues include $32 million to a Texas family, $18.5 million to a California homeowner for mold damages and over $17 million dollars being awarded in a Florida case for a building that cost only $13 million to build originally.


So what can be done to fight back against this new and increasing tide of construction defect and personal injury lawsuits against builders, designers and subcontractors? First, designers and builders must review plan design and building exposure to reduce all possible points of water infiltration during construction. Areas of major consideration would include the roof system, installation of flashings, doors and windows, waterproofing details and methods, materials selected for exterior wall systems, insulation, HVAC systems and providing a constant source of natural ventilation. Most builders, especially those that have already been involved in any type of construction defect litigation know first hand that water intrusion and leak related issues can be the primary cause of structural damage and litigation by homeowners. If builders can stop the water and moisture from coming into the building, then it is difficult for mold to start growing.

Second, during the construction phase, builders and their subcontractors must have a quality assurance program and checklists regarding construction methods and details involving sources of water intrusion. This may involve specialized training of workers performing the work or hiring outside third party inspectors to check the installation of roofs, windows and exterior walls systems.

It may also be advisable to review the materials used in construction and consider those materials that are low in cellulose. One example would be to use cement based siding material versus using a fiberboard type siding product for an exterior wall system. In addition, using solvent based caulking with a 15 to 25 year life span over a less expensive water based type sealants might be considered. Although there may be a slight increase in the cost of building construction, these steps may help avoid builders and subcontractors avoid million dollar judgments in the future.

Third, when a homeowner reports a leak or moisture damage in their home, builders should take special notice and have customer service staff trained to react immediately to provide a thorough and complete cleanup of moisture damaged areas. If areas can be effectively cleaned up and moisture removed within the first 24 - 48 hours, the possibility of mold growth can be greatly reduced. In addition to immediate cleanup, the source of the leak must be determined and a repair completed in order to prevent the reoccurrence of any moisture. Without an effective repair, more leaks and mold growth are likely in the future.


Customer service personnel should be trained in mold identification methods and receive special training in cleanup procedures. California, under SB732 is considering the feasibility of classifying mold as a hazardous substance and developing Permissible Emission Levels (PEL's) for building occupants for exposure to mold spores. In the future, specialized procedures not unlike asbestos remediation may need to be used for the protection of the occupants and workers to prevent the further contamination of a structure with mold spores.

Currently, under most published guidelines, remediation or abatement of small isolated areas (10 sq. ft. to 30 sq. ft.) such as carpet, wood sheathing/siding and drywall ceiling/wall areas can usually be completed by company-trained staff. The removal of large areas of mold growth should be left to companies that have special training and equipment, such as restoration contractors or asbestos abatement specialists in order to prevent the spread of mold to other parts of the building.

Builder and contractors interested in more information regarding mold can log on to the following websites:

Mr. Peter Kuchinsky II and Mr. Glenn Schwartz each have over 20 years in supervising and managing residential and commercial construction projects. They provide inspection and consulting services in litigation matters related to construction defects and worker safety issues. Mr. Kuchinsky of Construction Building Analysts CBA) in Vista, CA can be reached at 760/941-3414 or and Mr. Schwartz of Schwartz Construction Consulting (SCC) in San Marcos, CA can be reached at 760/717-2289 or

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