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Microscopic photo/picture of Mucor mold taken during mold sample analysis by mold expert.

Mucor mold under a microscope taken during mold sample analysis.

Stachybotrys toxic mold growing on and in drywall.

Stachybotrys toxic mold
growing on and in drywall.
[from Case Western Reserve U.]

Jury Sends Message to Insurance
Industry in Toxic Mold Case

[Note: The Texas Appeals Court in December 2002, reduced the
Ballard family jury award to approximately 4 million dollars.]
By Stephanie K. Jones, Insurance Journal

A recent jury decision should put up red flags for insurers: Take care of toxic mold claims adequately and promptly, or risk being assessed millions of dollars.

That warning came in the form of a $32-million award to a Dripping Spring, Texas, family after the jury concluded that a subsidiary of Farmers Insurance Group mishandled the family’s claim. The Austin American-Statesman noted that the June 1 award is one of the first in the nation to order an insurance company to pay damages to the homeowner in a toxic mold case.

In their lawsuit against Farmers’ subsidiary, Fire Insurance Exchange (FIE), homeowners Melinda Ballard and Ron Allison alleged the company mishandled their claim. They requested $100 million in restitution.

According to Ballard and Allison, Farmers delayed in covering repairs for a water leak in the couple’s 22-room mansion and ignored contractors’ warnings that dangerous molds could grow under the house’s sub-flooring if the sub-flooring were not pulled up. The couple said Farmers’ failure to properly handle the claim allowed the toxic mold Stachybotrys atra to take over their house, which damaged the family’s health.

Judge John Dietz previously ruled that medical testimony on health effects of mold could not be introduced because the level of scientific proof required by a Texas Supreme Court mandate does not yet exist; however, the jury found that the house was damaged beyond repair and that it will have to be demolished and rebuilt. The Statesman reported that the family was awarded $6.2 million in actual damages, $12 million in punitive damages, $5 million for mental anguish and $8.9 million for lawyer’s fees.

According to court documents in Ballard v. Fire Insurance Exchange (Travis Co. Cause No. 99-05252), Ballard experienced a plumbing leak in a bathroom in 1998, had it repaired, and that several months later the house’s hardwood floors started buckling. Ballard filed a claim with Farmers, which had insured her home since 1992. The suit alleges that in December 1998, a flooring contractor cautioned Farmers about the potential for dangerous mold growth but Farmers ignored the contractor’s warning.

Instead, the company reportedly followed the advice of a Farmers adjuster who indicated that the problem was related to the settling of the slab and was not covered by Ballard’s policy. In addition, Farmers was alleged to have conducted a plumbing check but reported that it had found no leaks.

In early 1999, the family—Ballard, Allison and their three-year-old son, Reese—experienced the first of a number of unexplained illnesses, including coughing up blood. The condition of the floors got worse, and walls, windows and doors were damaged as a result of the subfloor being waterlogged. Farmers tried to settle the claim at that time, but offered an amount that the homeowners considered insufficient to cover the damages to the home.

According to the complaint, a Houston microbiologist retained by Farmers, Dan Bridge of Rimkus Engineering, found that the space contained airborne Stachybotrys spores. However, neither Farmers nor Bridge informed the family about the discovery until after the illnesses occurred. Ballard and Allison hired scientists from Texas Tech University to test the home, and after the presence of toxic mold spores was confirmed, the family moved out.

Commenting on the case, Austin attorney Sean Michael Quinn, who specializes in insurance matters, said it is unlikely that the $32-million assessment will stand after the case moves through the appellate courts, as it is expected to do. However, the impact of the jury’s award in an “ably tried case on both sides” will reverberate through the insurance industry, Quinn said. He noted that in fact, the case has already influenced the way that insurance companies handle mold claims, even before the jury award, causing them to be more careful in the handling of those claims.

Quinn speculated that one result of the jury award will be to make insurance companies stand up and take notice that “maybe ‘bad faith’ is not dead,” at least not in Texas. He said the award sends a message that “here’s what a jury will do” in a case like this and that insurance companies are likely to gear up with a faster, more adequate response.

Another result of the award could be that surplus lines carriers, which are not required to have state approval of their forms, will begin to issue specific exclusions for mold, Quinn said.

Appeal is likely

Chris Martin, an attorney with Martin, Disiere & Jefferson, a Houston-based firm that specializes in insurance law, agreed that Farmers will probably appeal the verdict. He said that the trial will not conclude until Judge Dietz hands down his judgment on the verdict, noting that attorneys on both sides are preparing motions for such a judgment.

Farmers’ motions will likely request, among other things, a reduction in the damages and, perhaps more importantly, that the judge find the plaintiffs’ claims for damages were not covered under the homeowners policy. Martin said that the coverage question is a huge one for the industry and added that even if the judge reduces the damages, Farmers is sure to appeal.

The mold/illness relationship

As noted by the trial judge, the relationship between airborne toxic mold spores and adverse health effects is so far unclear and unproven. While it has been reported that Stachybotrys atra and certain other toxic molds produce mycotoxins can cause unique or rare health conditions, such as pulmonary hemorrhage or memory loss, the Centers for Disease Control and Prevention (CDC) report that there is a lack of significant data that scientifically links toxic mold to these conditions.

According to the CDC, common health concerns from molds include hayfever-like allergy symptoms. And certain individuals with chronic respiratory disease (chronic obstructive pulmonary disorder, asthma) may experience difficulty breathing in the presence of molds. CDC information suggests that molds are very common in buildings and homes and will grow anywhere indoors where there is moisture. The most common indoor molds are Cladosporium, Penicillium, Aspergillus, and Alternaria. Accurate information about how often Stachybotrys chartarum (or Stachybotrys atra) is found in buildings and homes is not available. According to the CDC, although Stachybotrys atra is less common than other mold species, it is not rare.

Attorney Beth Bradley, who has represented insurance companies in a number of mold cases and has followed the developments in the Ballard case closely, agreed that there is “not a lot of hard evidence connecting mold” to illnesses. She said that media coverage of the Ballard case is likely to feed the hysteria surrounding mold issues, but added, “we are just now starting to see the other side of the story” in these cases.

Bradley said that concerns about unscrupulous remediation contractors have begun to surface, adding that inflated repairs are likely to drive insurance costs up. In addition, false positives for Stachybotrys caused by improper testing are common and are also a cause for concern, Bradley said.

Hysteria or reality?

The Ballard case has received intense media scrutiny, and while significant, it is not the only mold-related case moving through the court system in the U.S.

In May, the Delaware Supreme Court upheld a $1-million verdict in a mold exposure case and found that a landlord can be held liable for injuries suffered by its tenants because of mycotoxins, bacteria and fungi within an apartment. The plaintiffs in that case claimed that exposure to toxic mold spores while living in an apartment complex prevented them from performing their regular duties, and caused economic losses and illnesses, such as asthma, permanent cognitive defects, osteopenia and an increased risk of tuberculosis that will require future medical care.

Mold issues are a hot topic in the insurance world right now, “and the media are contributing to the hysteria,” according to attorney Martin. He said that the majority of claims that companies are seeing are not ones where the claimants actually see mold. Often, they begin to experience allergy symptoms and ask the insurance companies to investigate.

A large number of claims are generated by lawyers, neighbors or friends who may suggest that a claimant may have mold problems, Martin said. Finally, a smaller number of the claims are “legitimate water damage claims where mold and fungus grow due to water damage,” he said.

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