Roy Cupps
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| | Posted on Saturday, March 23, 2002 - 7:01 pm: | |
“A COMMON SENSE APPROACH TO MOLD, THE FACTS”
BY
JIM LAKES, RPA
INTRODUCTION
Just the other day, I attended another claims conference where the main topic of discussion and instruction was “MOLD,” just one of many that I have attended over the past year all over the country. I could not help but be amazed by the people that were the instructors. Not only were they reading word for word, from some of the same publications that I had in front of me, but also, the most disturbing fact was, “what they were not reading.”
This article will provide a common sense approach and share facts as put out by the leading authorities on this subject, not just the ones a lot of people want you to hear.
Are we, as adjusters for the carriers and the public, hearing the real and true facts about the “Deadly, Unhealthy, Dangerous, and Costly” new claims phenomena called, “Mold?”
Can we as adjusters depend on the so called “expert information” that is being pushed upon us by the “Fear Mongers” at almost every claims conference, seminar and continuing education function that we attend out there?
Can we as adjusters sit ideally by and “assume” that, “hey, if some or a majority of the remediation companies, public adjusters, plaintiff attorneys, and industrial hygienists are on this money train, then why should or shouldn’t we be there with them to collect our portion of the pot?
The answer to these and many other questions concerning mold and mildew is in the same publications that the so-called experts are reading. It is also available from the same sources from which they are quoting sources.
I remember times throughout my life where I found a little mold on some bread, wherein, I threw the piece out that had mold on it and ate the rest. I’m now 60, maybe a little senile, but believe that, the rest of the bread I ate did not affect me.
The other day my wife called me to the kitchen and asked, “Why did this new loaf of bread get mold on it and should we throw it out?” I told her, wait a minute, “DON’T TOUCH IT, DON’T BREATH IT, DON’T LOOK AT IT WITHOUT PROPER EYE PROTECTION AND CALL AN INDUSTRIAL HYGIENIST TO SAMPLE IT, ANALYZE IT, TEST IT, QUICK CALL OUR INSURANCE CARRIER.”
This is how bad it has gotten when the word “Mold” is mentioned in public or in front of insurance claims personnel. Now lets see why!
WHAT CAUSES MOLD?
Lets review some things that we all know and can all agree upon. Mold has been around since the beginning of time. Mold grows and spreads where there is the right combination of moisture/humidity, food source and temperature.
What have we heard when we attend these “Mold” conferences, seminars, news stories and functions? Broken pipes, water leaks, sewer backups, wind driven rain, ice dams, and any other covered claim loss known to man cause mold. It very well could, if no one dries up the moisture and properly cleans the damaged area. It’s called, mitigating the claim.
HOWEVER, let’s see what else the EPA, (United States Environmental Protection Agency), the CDC, (National Center for Environmental Health), and the NYCDH, (New York City Department of Health), the three top go to sources, say about mold.
The EPA:
“Moisture control is the key to mold control.” Molds need both food and water to survive; since molds can digest most things, water is the factor that limits mold growth.
Without mold, our environment would be overwhelmed with large amounts of dead plant matter.
Common sites for indoor mold growth include bathroom tile, basement walls, areas around windows where moisture condenses and leaky sinks. Condensation associated with high humidity or cold spots in the building. Uncontrolled humidity can also be a source of moisture leading to mold growth.
The CDC:
“Molds are found in virtually every environment and can be detected, both indoors and outdoors, year round.” Mold growth is encouraged by warm and humid conditions. Indoors they can be found where humidity levels are high, such as basements or showers.
The NYCHD:
“Fungi are present almost everywhere in indoor and outdoor environments.” Occupants should address common household sources of mold, such as mold found in bathroom tubs or between tiles with household cleaners. Moldy food should be discarded. (Darn, my bread.)
Just the facts. From what we read from these leading authorities about mold, they are saying that mold is everywhere and that it is a large part of our environment. It is caused by excessive humidity, condensation and/or water. Control moisture and you control “Mold.” (EPA) Not that it doesn’t happen, but don’t we find it just a little strange that in not one instance does one of these authorities mention that mold is caused by, or is a direct result of, ice dam, sewer back up, and so on. What do you hear from the experts at seminars; the broken pipe, blown off shingles, sewer back up, or an ice dam caused the mold loss. It is possible that it may have, but according to what is available, these conditions are not the only things that cause the mold growth. We must determine the “Cause of the Loss,” and use common sense reasoning.
IS MOLD REALLY HAZARDOUS TO YOUR HEALTH
The pre-eminent legal case involving mold and insurance issues is a recent case in Texas known as Ballard vs. Farmers. The jury awarded Ms. Ballard a total of $32,000,000.00 to be paid by the carrier.
Now lets get one major fact straight. The award in the Ballard vs. Farmers case is NOT about personal injury damages. The Ballard’s were not awarded one dime for bodily injury and they admit that by the statement made below.
The jury awarded the Ballard family $6 million in actual damages, $12 million in punitive damages, $5 million for emotional distress, and $9 million for legal fees. Nothing was given for their health issues. Ballard says, “Some people still don't seem to understand that her case really isn't about mold, but about an insurer that handled a claim in bad faith.”
"It's not about every jerk in America with a little bit of mold in their shower thinking this case will be their salvation," says Ballard. "It's about not doing what's right in the first place." ((Link Removed By Request))
This noteworthy case got the ball rolling on mold. However, as Ms. Ballard stated, it wasn’t about mold, it was about “bad faith.” They claimed that they had health problems because of the mold. However, that part of the suit was not proven. In fact, all medical testimony was barred from being presented at trial because proof regarding the alleged injuries lacked sufficient scientific basis.
The mold that was in their dwelling was Stachybotrys chartarum, the same mold that everyone seems to be so afraid of. Many claim that this mold must be treated like the “plague.”
The first big noted case was made in January 1993 when 10 children obtained Pulmonary Hemorrhage from Stachybotrys mold, or it was claimed, in Cleveland, OH. This is where the fear of Stachybotrys came from. It was believed proven, that the mold caused the health problems with the children.
However, in March of 2000, some seven years later, the CDC issued a report about the above case, which received very little press that states the following:
“A review within the CDC and by outside experts of an investigation of acute pulmonary hemorrhage in infants has identified shortcomings in the implementation and reporting of the investigation.” It further stated that, “The reviews led CDC to conclude that a possible association between acute pulmonary hemorrhage in infants and exposure to molds, specifically Stachybotrys chartarum, was not proven.” “Serious shortcomings in the collection, analysis, and reporting of data resulted in inflated measures of association and restricted interpretation of the reports. The full report can be found at; www.cdc.gov/epo/mmwr/preview/mmwrhtml/mm4909a3.htm.
All three sources do agree that mycotoxins, (a toxic substance produced by mold spores) can be harmful to humans. This can cause mucous membrane irritation, skin rash, nausea, immune system suppression, acute or chronic liver damage, acute or chronic central nervous system damage, endocrine effects, and cancer.
The EPA states:
Some molds such as Aspergillus and Stachybotrys, are known to produce potent toxins under certain circumstances. Although some mycotoxins are well known to affect humans and have been shown to be responsible for human health effects, for many mycotoxins, little information is available, and in some cases, research is ongoing. They further state that, “More studies are needed to get a clear picture of the health effects related to mycotoxins.”
Just the facts. Like most people, we must depend upon the information provided to us by other sources. This includes many different types and kinds. We do not know if molds are as harmful to all people as some people seem to indicate. The experts in this field are not and cannot prove beyond a doubt that mold is harmful to all human beings.
Many of us can relate to our childhood, wherein when mold was found in our homes our mothers put a little bleach in a spray bottle and washed it down. More will be stated about remediation later, however, no real ramification of this contact was known. At a recent conference, the Director of one of the largest state wind pools, shocked the crowd by stating in front of several hundred people that he thought this problem was “Bull----.” He stated that he intentionally made contact with mold and did everything except eat it and felt no ill health effects whatsoever.
OSHA (Occupational Safety and Health Administration) states in one of its technical manuals that indoor air quality rated by percentage lists Microbial contamination at 5% or next to last as a primary source of the poor air quality problem. This study was done over the last decade and out of 500 investigations. They further report that listing of Major Indoor Air Contaminants, that the very last contaminant on the list is Micro-organisms (mold), behind such things as, tobacco smoke, formaldehyde, (off-gassing from plywood, particle board, paneling, carpeting and fabric, glues and adhesives), ozone from copy machines, electrostatic air cleaners. Remember the smell of the new carpet in your house or office?
Does this mean that mold is not bad for humans? We think the jury has not heard all the facts and evidence related to this issue and therefore, no one can, at this time prove one way or the other, if mold is harmful to all human beings. Until conclusive proof is established, “common sense must prevail.”
DO YOU HAVE TO BE AN EXPERT TO ADJUST A MOLD CLAIM?
As an adjuster, are you required to be an expert on mold? No.
Are you required to be licensed in mold to adjust a claim? No, because there is no such thing.
Are you required to be certified in mold? No, because there are no accredited certification programs for mold by leading authorities, i.e. our government agencies, CPCU, AIC, RPA or other responsible organization. Don’t let anyone mislead you by saying they are or will give you a certification if you attend one of their “seminars.” No one has the accreditation to certify anyone in the procedures for handling of a mold claim, at this time. If they say they can, ask them who accredited their certification program.
Do you have to be an industrial hygienist to handle a mold claim? No.
Do you have to be a remediation contractor to adjust a mold claim? No. Most, if not all remediation companies have not been dealing with insurance mold claims any longer than you have and have only went to the sources of learning that you can.
Do you, as the adjuster, have to sample mold every time you find it when adjusting a claim? No. Of course remediation companies and hygienists say or would like you to.
The EPA, CDC, OSHA, or NYCHD do not state who is qualified to inspect or identify mold in a specific situation. You are not required to identify the type and kind of mold that may exist at a loss location. The EPA states: “Is sampling for mold needed? In most cases, if visible mold growth is present, sampling is unnecessary.” It further states: “In specific instances, such as cases where litigation is involved, you may consider sampling.” For this claim, where the insured is complaining of health problems or expresses concerns of health problems, it may be beneficial to sample for the type mold found.
Just the facts. It goes without saying, you must know your policy and you must know how to adjust claims. The EPA does not state who is qualified to inspect for mold. In other words if you study, read and research all the information that is available to you, you will be as qualified as anyone else to handle a mold claim.. Some would have you believe that you must be all of the above to handle a mold claim. If you are an experienced adjuster, and educate yourself about mold and the process that is involved with the clean up of mold you can adjust any mold claim, control the cost to the carrier for remediation, restore the insured back to pre-loss condition, and do the job you are hired to do, adjust the claim.
WHAT DOES THE EPA, CDC, AND NYCHD SAY ABOUT REMEDIATION?
These are just some of the things stated by the above sources and does not mean all-inclusive or exclusive to each mold situation. Moreover, remember what we hear at the seminars and conferences that we attend.
The EPA:
1) 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.
2) The key to mold control is moisture control.
3) If mold is a problem in your home, clean up the mold and get rid of the moisture.
4) Wash mold off hard surfaces with detergent and water and dry completely.
5) Do not use fans before determining that the water is clean or sanitary.
6) Mold can generally be removed from nonporous (hard) surfaces by wiping or scrubbing with water, or water and detergent.
The CDC; Questions and Answers on Stachybotrys chartarum and Other Molds:
1) Q2: How common is mold in buildings?
A: Molds are very common in buildings and homes and will grow anywhere
indoors where there is moisture.
2) Q7: How do you know if you have a mold problem?
A: Large mold infestations can usually be seen or smelled.
3) Q11:How do you get the molds out of buildings, including homes, schools,
and places of employment?
A: In most cases mold can be removed by a thorough cleaning with bleach
and water. If you have an extensive amount of mold and you do not think
you can manage the cleanup on your own, you may want to contact a
professional who has experience in cleaning mold in buildings and homes.
3) Q12:What should people do if they determine they have Stachybotrys atra in
4) their buildings or homes?
A: Mold growing in homes and buildings whether it is Stachybotrys or other
molds, indicates that there is a problem with water or moisture. This is the first problem that needs to be addressed. Mold can be cleaned off surfaces with a weak bleach solution. We do not believe that one needs to take any different precautions with Stachybotrys, than with other molds. In areas where flooding has occurred, prompt cleaning of walls and other flood-damaged items with water mixed with chlorine bleach, diluted 10 parts water to 1 part bleach is necessary to prevent mold growth.
DID YOU GET THAT? GO BACK AND READ Q11 & Q12: AGAIN!!!
This is our U. S. Government speaking. The authority on disease control in this country.
In another area of a CDC publication the question is asked: “How can people decrease mold exposure?”
Answer: “Mold growth can be removed with commercial products or a weak bleach solution (1 cup of bleach in 1 gallon of water).”
Not only do they state that bleach can be used but a “weak” solution of bleach and then go on to give the exact amount of mixture.
The CDC in summation states: “Stachybotrys and other molds may cause health symptoms that are nonspecific. At present there is no test that proves an association between Stachybotrys and particular health symptoms.”
The NYCDH states:
1) Bulk or surface sampling is not required to undertake a remediation.
2) Air sampling for fungi should not be part of a routine assessment. This is because decisions about appropriate remediation strategies can usually be made on the basis of a visual inspection.
3) In all areas smaller than 100 contiguous square feet, a disposable respirator can be used, (N95).
4) Cleaning should be done using a detergent solution.
Just the facts. All sources state, that there are NO federal or state laws or regulations that regulate the remediation of mold. They all state, that theirs are guidelines and nothing else. The EPA makes this statement: “Standards or Threshold Limit Values for airborne concentrations of mold, or mold spores, have not been set. As of December 2000, there is no EPA regulations or standards for airborne mold contaminants.” If this were the case, where is the common sense approach to mold remediation? Why are we as adjusters, insurance carriers, and the public not abiding by the government service that provides the most compelling remediation information to us about our health, the CDC?
WHAT ABOUT THE COVERAGE QUESTION?
This question is one that will be ongoing as long as mold exist in our environment, or until the carriers take a stand on this issue. At one of the conferences we attended, one of the areas most well known lawyers for insurance carriers stood up and made the statement: “If I could I would recommend to the ISO policy changes, I would recommend that they totally exclude mold as a covered loss.” He further stated: “Insurance carriers should deny most mold claims based on the exclusion of latent defect, pre-existing conditions, improper building, or poor workmanship.”
After his presentation, we went to him and asked why he would make these statements, knowing full well that the plaintiff attorneys, courts, government and the public would not let that happen. His answer: “That’s what should be done.”
We as adjusters will not make those decisions. We do not write the policy. We do however, interrupt the policy when it comes to coverage or we are supposed to. Our job, “Cause, Coverage, Cost.”
There are to many scenarios for us to go into the coverage issue as to what is covered, when it is covered, for what reason and what type policy. This issue is for greater powers than us to decide, when it comes to the mold issue. We suspect that more and more companies will exclude mold and then write endorsements with sub-limits, like sewer back up coverage.
However, if the insurance carriers do not spell out specifically what the coverage is for mold, (when discovered from a covered loss), and will not publish it for all to see:
1) Specific instructions on what is covered;
2) Repairs needed to put the insured back to pre-loss condition;
3) How to determine the amount for the loss (other than letting the Fox loose;
then we as adjusters are left with our necks stuck out for the chopping block.
Just the facts. We believe that most good adjusters know what it takes to evaluate, adjust, and control a mold loss, however, when an adjuster does so, they do so at their own risk and do we as adjusters want to take that $32,000,000.00 risk on our own? We think not.
We believe that it is time for the carriers to step up to the plate and address the coverage issue and face up to the “Fear Mongers” that are driving up the cost of everyone’s premium by paying these outlandish figures to cover something that is here, will be here, and has been here since the beginning of time. What happened to “Sudden and Accidental?” Suddenly it is a problem and it is no accident that we will all pay for it in the years to come.
A COMMON SENSE, FACTS SUMMARY}
At this time, no one has the answers to all the mold questions. There are no authorities, no laws, no specific and irrefutable answers to what mold does to our health. However, there are GUIDELINES. Each and every one of the suggested steps is not, and as mentioned above, in most cases NECESSARY. A lot of the remediation costs that are now on going, are doing nothing but putting money in the pockets of those that choose to read only what guidelines they want to read. It is much like reading the Bible; there are passages where sacrifices are asked for, that in later passages are done away with or are outdated. Many of those choose to only read what they want to and interpret it how they want to.
This is why we believe that it is imperative, until the powers to be, give some sound guidelines, for adjusters to take the following steps:
1) Address the mold issue on each and every water loss.
2) Document each and every water loss where the mold issue is brought up or seen.
3) Photograph every possible angle of a water loss. All photographs do not have to be given or billed to the carrier. This is for your protection should the case become involved in future litigation.
4) DO NOT discuss the mold issue with the insured until directed by the carrier as to how they wish to proceed with the claim.
5) Notify the carrier immediately upon discovery or concerns by the insured of any mold issues. Most all of us, now carry cell phones. We contend that a call should be made to the carrier as soon as possible.
6) Let the carrier be the guiding force and the authority. If you and the insured take the wrong course, you are the one who loses in the end, unless you just happen to have $32 million lying around that, you want to give away.
7) When mold is found make every attempt to find out where it came from, how long it has been seen, what the actual cause of its existence is, and what steps the insured took to mitigate the problem.
8) DO NOT make any commitments to the insured unless directed to do so by the carrier.
In simple terms, use common sense and realize that you are the one that is talking to the insured, answering their questions, and adjusting the claim. You are the one taking the risk unless the carrier gives you specific instructions. If you use common sense, chances are, you will not say or do the wrong thing that would put you in the position for a “Bad Faith” claim.**
** Disclaimer
While the information contained in this report was obtained from or based upon material from sources, we assume to be accurate and reliable, Jim Lakes, RPA makes no warranty of any kind as to its accuracy, completeness or applicability to any specific situation. The material presented is for information only, and Jim Lakes, RPA, does not necessarily subscribe to the views regarding the subject matter as expressed by others cited in this report. Further investigation may be necessary to verify the information's accuracy, completeness or applicability to any specific situation. For any legal research items, we recommend you consult with an attorney to determine applicability of the information to your particular circumstances.
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