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Toxic Mold: Who To Sue

Who might be liable for injuries and damage from a toxic mold infestation?

These days mold and "toxic mold" are the subject of increasing health concerns and lawsuits. If you have developed health problems, suffered property damage, or incurred other types of losses because of a mold infestation, you may be able to file a legal claim to get compensation for your injuries or losses, including the cost of getting rid of the mold (called "mold remediation").

In evaluating a potential lawsuit, one of the first things you'll need to do is identify which people and companies might be liable to you for the mold infestation. Who you can sue for a mold infestation depends on whether the mold is in a building you own or rent, or in a public place like a workplace or community building.

Mold in a Building You Own

If you discover a mold infestation in your home, apartment, condominium, vacation home, or some other building that you own, below is a list of the type of defendants who might be liable.

If you file a lawsuit you can include all parties who might reasonably be wholly or partially responsible for the infestation you don't need to choose between defendants. There may be more than one defendant in each of the categories listed below, as well as other types of defendants not listed, depending on the specific circumstances of your case.

Homeowners' insurance. In most cases, your first stop should be your homeowners' insurance policy. Whether your policy covers your type of mold infestation will depend on what the policy says. You'll need to carefully read the policy to find out what it covers and what it specifically excludes from coverage.

• Perils covered. Coverage may specifically include certain types of "peril," meaning specific bad events such as a fire or a roof leak. If the cause of your mold infestation is a covered peril, you may be in luck. For example, if the cause of the mold infestation is a leaky roof, and roof leaks are one of the perils listed in your policy, then the insurance company is probably obligated to cover the cost of mold remediation.
• Exclusions. Most homeowners' policies also have a list of "exclusions," meaning bad things that are not covered by the policy. These typically include things like termite damage or mold infestations that develop over time.

In dealing with your insurer, you have at least one ace in your hand. Insurance companies are bound by a legal doctrine called the "covenant of good faith and fair dealing," meaning that, in dealing with a policy-holder, the insurance company is held to a heightened standard of conduct.

In practical terms, this means that if your insurance company drags its feet, tries to trick you or wriggle out of the terms of your homeowners' policy, or otherwise plays fast and loose with you, you may have an additional legal claim against it for violation of the covenant of good faith and fair dealing. (To learn more about homeowners' insurance, read Nolo's articles Homeowners' Insurance: What You Need to Know and Homeowner's Insurance: Do You Have Enough Coverage?)

Builder or contractor. If the mold infestation is the result of shoddy construction or materials or a failure to install proper ventilation, you may have a legal claim against the builder, general contractor, or one or more subcontractors for negligence (the failure to be reasonably careful). Some states require builders or contractors to guarantee their work in the form of a warranty; you may be able to claim that the builder or contractor violated or "breached" such a warranty.

Architect or engineer. If the mold infestation is the result of poor architecture or engineering, such as a failure to include proper ventilation in the design of the home, you may have a claim against the architect or structural engineer for negligence. Some states require architects or engineers to guarantee their work in the form of a warranty; you may also be able to claim that the architect or engineer breached that warranty.

Construction supplier. If you can show that the mold infestation in your home was "imported" into it by way of moldy construction materials such as siding or drywall, you may have a claim against the commercial supplier of the mold-infested materials.

Prior owner. Most states require the seller of a home to disclose any known problems such as the presence of a mold infestation. If the prior owner knew of the presence of mold but did not tell you when you bought your home, the owner may be liable to you for violating these disclosure laws. (If you are buying a home and suspect a mold problem, read Nolo's article Mold: Is It Hiding in the Home You're Buying?.)

Realtor. The seller's realtor (who is an agent of the seller) may also be liable for selling you a home with a mold infestation.

Property inspector. If you hired a property inspector to inspect your home before you bought it, the inspection company may be liable to you if it missed a mold infestation. You will need to carefully review the property report you were given, especially the language at the beginning regarding the scope of the inspection and any disclaimers.

Condominium association. Because of the special status of owners in a condominium complex, the condo association may be on the hook for a mold infestation, especially if it occurs in a common area.

Under the landlord-tenant laws of most states, landlords are subject to a legal doctrine called the "implied warranty of habitability," which makes the landlord responsible for keeping the rental property free of health hazards such as a mold infestation.

Because the implied warranty of habitability is an obligation imposed by state law whether the landlord likes it or not it overrides any language in your lease that is inconsistent with that responsibility. So be skeptical and persistent if your landlord denies responsibility for a mold infestation under the terms of your lease.

If your landlord is dragging his or her feet, you may be able to get action by contacting your local housing authority. If you are seeking compensation for an injury or damage to your personal property, however, you will likely need to take legal action. (To learn more about mold in rentals, read Nolo's article Mold in Rentals: Landlord Liability, Responsibility, and Prevention.)

Mold at Your Place of Work

If you have developed health problems because of a mold infestation at your place of work, you may be able to file a workers' compensation claim. Whether workers' compensation will cover your injuries and preclude you from taking your employer to court is an evolving area of the law and will depend on the particular circumstances of your case. (To learn more about worker's compensation, read Nolo's article Your Right to Worker's Comp Benefits FAQ.)

Mold at Your Child's School or Other Community Building

If you or your child has developed health problems because of a mold infestation in a school or other community building, the liability of the school or other responsible party raises a host of legal issues, especially if it is a public school or other government-run institution.

You may be able to get action by contacting the school administration, the local school board, or the local health department. To get compensation for you or your child's injuries, however, you may have to pursue a legal claim.

If you are dealing with a government agency, you may have to file an administrative claim before you can go to court. The administrative claim process varies from one government agency to another. Depending on the size and seriousness of your claim, you may benefit from the advice and assistance of a lawyer.

Learn About Mold and the Law

Before you jump into a lawsuit, do some research about the health risks associated with mold. Because the scientific explanations of mold are both complex and technical, numerous misconceptions have crept into the popular perception of toxic mold and its dangers. As a general matter, there is no federal "mold law." The specific laws that apply to your claim will depend on the particular state law governing your case. (To learn more about what we do and don't know about mold, read Nolo's articles Toxic Mold Basics and Health Risks of Mold Exposure .)

Getting Help

Because the science behind mold can be complex and proving a link between health problems and mold exposure may be difficult, you may want to consult a lawyer who is experienced in mold cases.

For help in choosing an appropriate attorney, read Nolo's article Finding a Personal Injury Lawyer.Or, go straight to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click the "Types of Cases" and "Work History" tabs to find out about the lawyer's experience, if any, with mold cases).

For detailed information on the wide range of issues facing residential landlords, get Every Landlord's Legal Guide, by Janet Portman, Ralph Warner and Marcia Stewart (Nolo).