Table of Contents
Chapter 1 Mould lawsuits in the news
1.1 Mould lawsuits up by 300%
1.2 Denver International Airport faces mould lawsuits
1.3 Mould forces cuts in hours in Tulare County Court
1.4 Mould-stricken Ed McMahon files lawsuit
1.5 Tennessee jail mould makes staffers ill; kills inmate
1.6 Mould claims spread to cars
1.7 Beware of illegal and unregistered fungicide
1.8 The reasons behind the rise in mould lawsuits
1.8.1 Population shifts
1.8.2 The rise of new buildings
1.8.3 Rising property values
1.8.4 More plumbing
1.8.5 Advances in medical science
1.8.6 Increased public awareness
1.8.7 Government action
1.8.8 Mould industry
1.8.9 Numerous successful mould litigations
Chapter 2 Filing class action lawsuits
2.1 What is a class action?
2.2 Class action prerequisites and legal procedure
2.2.1 Prerequisites to a class action
2.2.2 Class actions maintainable
2.2.3 Determination by order whether class action to be maintained; notice; judgment; actions conducted partially as class actions
2.2.4 Orders in conduct of actions
2.2.5 Dismissal or compromise of class action
Chapter 3 Legal implications of mould contamination of HVAC systems
3.1 Sick building syndrome and IAQ lawsuits
3.2 HVAC manufacturing and design defects
3.3 Legal liability of HVAC manufacturers for mould-related injuries
3.4 Proposed HVAC design solutions
Chapter 4 Possible causes of action and potential damage awards for mould contamination
4.1 Common causes of action
4.2 What is a tort?
4.3 Four elements of tort
4.4 Duties of a landlord
4.5 Legal grounds to file lawsuit against defendants
4.5.1 Negligence
4.5.2 Strict Liability
4.5.3 Breach of Warranties
4.5.4 Constructive Eviction
4.5.5 Workers Compensation
4.5.6 Failure to Disclose
4.6 How to claim workers compensation
4.7 California mould disclosure law
Chapter 5 Damages recoverable in mould Cases
5.1 Diminution of value and cost to repair
5.2 Cost of remedying the defects
5.3 Personal exception rule
5.4 Personal injury
5.5 Prejudgment interest
5.6 Attorney’s fees
5.7 Punitive damages
5.8 Emotional distress damages
Chapter 6 Statute of Limitations for mould cases
6.1 Purpose of statute of limitations
6.2 Delayed discovery rule
6.3 Interruption of one-year statute of limitations
Chapter 7 Verdicts and settlements of mould cases
7.1 Recent published verdicts and settlements of mould cases in California
7.2 Recent publicized old cases in other states
7.3 Legal liability of insurance companies
Chapter 8 The mould-illness relationship
8.1 Hysteria or reality?
8.2 Scientific proof and the implications of legal liability
8.3 Other reports linking mould to serious health and property damage
Chapter 9 Mould insurance primer
9.1 Types of insurance
9.2 Traditional mould insurance
9.3 Mould insurance? or incidental mould coverage?
9.4 Review your policy carefully & understand your coverages
9.5 The basics of mould contamination insurance coverage
9.6 Property damage coverage
9.7 Third-party liability coverage
9.8 Call your insurance agent & report a suspected claim immediately
9.9 Protect all property from any further damage
9.10 Photograph, videotape and inventory all damaged property
9.11 Handling insurance claims: where to get the information
9.12 Your obligation to cooperate with insurance company investigation
9.13 Never sign anything without proper legal advice
9.14 Get a second or even third opinion regarding estimates
9.15 You don’t have to use insurer’s “approved contractors”
9.16 Get professional help if you need it
9.17 Statute of limitations
9.18 Report all unfair claim handling to your department of insurance or insurance regulator
Chapter 10 Toxic mould legislation
10.1 2003 toxic mould legislation
10.1.1 Illinois
10.1.2 Louisiana
10.1.3 Massachusetts
10.1.4 Montana
10.1.5 Oklahoma
10.1.6 Oregon
10.1.7 Pennsylvania
10.1.8 Rhode Island
10.1.9 Texas
10.2 Toxic mould insurance legislation
10.3 The Comprehensive Loss Underwriting Exchange (CLUE)
10.4 Reporting mould damage to your insurer
10.5 Things to consider when reporting mould problem to your insurer
10.6 Additional Living Expense (A.L.E.) Coverage
10.7 Coverage for personal items
10.8 The role of your mortgage company
10.9 Resolving disputes with an insurer or claims adjuster
Chapter 11 Effectively handling mould and water damage claims
11.1 I have identified a potential water damage claim. What should I do?
11.2 What can I expect from my insurance company when I report water damage?
11.3 What can my insurance company expect from me?
11.4 What can I do if I feel my insurance company is not being responsive?
11.5 Should I test my home if I find mould growing?
11.6 Should I move out of my home if I discover a mould problem?
11.7 I had to move out of my home. What can I expect from my insurance company regarding Additional Living Expense (ALE) coverage?
11.8 How can I control my ALE expenses?
11.9 How can I select a qualified remediator? How can I ensure the mould remediation and repair process is handled correctly and efficiently?
11.10 Should my belongings be cleaned or replaced?
11.11 What other information do I need?
Chapter 12 Texas Department of Insurance suggested practices for insurers
12.1 What should the claimant expect when reporting water damage claims?
12.2 How can the overall water damage claims handling process be improved?
12.3 Should the home be tested?
12.4 What factors should be considered when determining whether a dwelling is wholly or partially untenantable and Additional Living Expense (ALE) is necessary?
12.5 What additional information, assistance and education can the insurer provide the insured?
Chapter 13 Mould in construction defect cases
13.1 Is mould a construction defect?
13.2 Statute of limitations in construction defect cases
13.3 Mould-related construction defect cases
Chapter 14 Real estate brokers’ rights and responsibilities
14.1 What real estate professionals must do
14.2 Conduct a reasonably diligent visual inspection
14.3 Watch for mould conditions
14.4 Disclose any known mould problems
14.5 Incorporate mould considerations into sale and lease agreements
Chapter 15 Landlord rights and responsibilities
15.1 Obligations and duties of landlords
15.2 Your options if the landlord won’t make required repairs
15.2.1 Repair and deduct
15.2.2 Wait
15.2.3 Do the repair
15.2.4 Let your landlord do the repair
15.2.5 Get your money back
15.3 How many times can I do this?
15.4 Can I use repair & deduct for cosmetic purposes?
15.5 Can I use repair & deduct to put accommodation for my disability
Chapter 16 Tenant rights and responsibilities
16.1 What the landlord is required to do
16.1.1 Maintain facilities
16.1.2 Comply with building codes
16.1.3 Keep common areas safe
16.1.4 Keep premises in safe and habitable condition
16.2 What the tenant is required to do
16.3 Checking into your apartment or house
16.4 Renter’s insurance
16.5 Lawn upkeep
16.6 Quiet enjoyment
16.7 Repairs and mould remediation to your rental
Chapter 17 Landlord and tenant disputes
17.1 Withhold rent
17.2 Abandonment of lease
17.3 Small claims court
17.4 What you need to show as tenant in small claims court
17.5 Evictions
17.6 Security deposits
17.7 Landlord’s obligations during the lease
17.8 Landlord’s obligations at the end of the lease
17.9 Normal wear and tear damage
17.10 What to do if landlord unlawfully withheld excessive security deposit
Chapter 18 Suing your landlord
18.1 Suing your landlord under “warranty of habitability”
18.2 Local code enforcement
18.3 Moving out –vacating your rental
18.4 Rent escrow
18.5 Landlord retaliation is illegal
18.6 How to sue your landlord
18.7 How to find the landlord –the owner of the land
18.8 Serving the right person with the court papers
Chapter 19 Consumers’ home-buying and home remodeling guide
19.1 What to do before you buy
19.2 Demand full disclosure
19.3 Conduct a general home inspection
19.4 Follow up
19.5 Hire a professional home inspector
19.6 Inspection: when and how it should be done
19.7 Building a new home
19.8 Home-buying FAQ
19.9 Guard yourself against poor construction work
19.10 What the new home buyer should know before close of escrow
19.11 What is binding arbitration?
19.12 Russian roulette
19.13 Just who Is really being harmed the most by the arbitration clause?
Chapter 20 Insuring projects with mould coverage
20.1 How builders should manage and insure their risks and assets
20.2 Building industry liability crisis
20.3 General liability insurance
20.4 Eight-point plan to manage your risks
20.5 What builders must do when mould and fungus arise
20.6 Mould and pollution exclusion
20.7 Subcontractor exclusion endorsements
20.8 “Discharged”, “dispersed,” and other terminologies used by courts
20.9 Is mould a “pollutant”?
20.10 New insurance language that excludes coverage for mould
20.11 New insurance products to deal with mould
20.12 CGL policies and the liability crisis
20.13 From “buyer beware” to “builder beware”
20.14 What builders must do to survive
Chapter 21 The mediation alternative to lawsuits
21.1 Mediation definition and overview
21.2 Who can mediate a case?
21.3 Mediate or Litigate?
21.4 Will the court make me mediate?
21.5 How do I start the mediation process?
21.6 What if mediation does not settle my case?
21.7 What is the secret to a successful mediation?
21.8 Seven (7) things your lawyer should do to succeed at mediation
21.8.1 Choose a mediator carefully
21.8.2 Prepare for mediation as if preparing for trial
21.8.3 Negotiate at a time and place it is advantageous
21.8.4 Share information strategically
21.8.5 Prepare the mediator
21.8.6 Use the mediator as a messenger
21.8.7 Seal the deal in writing
Chapter 22 The dark side of arbitration
22.1 The abuse of binding arbitration in new-home contracts
22.2 The nature of binding arbitration
22.3 Lack of consumer protection for new homebuyers
22.4 History of arbitration in home contracts
22.5 Interim studies by the Texas House of Representatives
22.6 Homebuilders with arbitration clauses
22.7 Lack of an “Alternative” Dispute Resolution (ADR) system
22.8 Other available Alternative Dispute Resolution (ADR) systems
22.9 The benefits of arbitration to the homebuilding industry.
22.10 High cost of arbitration
22.11 Biased arbitrators
22.12 Exceptions to the arbitration clause
22.13 Recommendations and conclusions
22.14 Arbitration FAQs: Is binding arbitration faster, cheaper, better?
22.14.1 Is binding arbitration faster than our court system?
22.14.2 Is binding arbitration cheaper than our court system?
22.14.3 Do I have a choice to select arbitration over our court system?
22.14.4 Should I buy a new home with a mandatory arbitration clause in the contract?
22.14.5 Which builder in Texas have mandatory arbitration clause?
Chapter 23 Mould victims can become medical malpractice victims
23.1 Types of medical malpractice
23.2 Damages for medical malpractice
23.3 Medical records
23.4 Limits on recoveries
23.5 Surgical injuries
23.6 Surgical injury statute of limitations
