Legal Implications of Mold Contamination of HVAC Systems

Risk Management Plan Must Prepare for IAQ Litigation

By Emily Wheeler

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The phrase "sick building syndrome" (SBS) has become part of the common vernacular over the last 10 years. Juries have been siding with plaintiffs in IAQ lawsuits while toxic mold has led to the closing of office buildings and schools. In this new environment, HVAC engineers need to understand what their legal responsibilities are and how to protect themselves.

The American Society of Heating, Refrigeration and Air-Conditioning Engineers (ASHRAE) indicates that 50 percent of all cases of poor IAQ result from badly designed or fitted HVAC systems.1

One cause of building-related illnesses (BRIs) is the growth and distribution of various biological contaminants in HVAC systems. HVAC systems may produce condensation, which contributes to the growth of microorganisms.2 Scientific studies have indicated that various types of nontoxic molds are sometimes present in HVAC systems.

One type of toxic mold that has been identified in the HVAC systems of homes and commercial buildings throughout the country is Stachybotrys atra (S. atra), which may have invaded the homes of 37 infants between 1993 and 1998 in the Cleveland area.3 According to one controversial study, 12 of these infants died from infant pulmonary hemorrhage caused by the toxic mold.4 Earlier this year, the Centers for Disease Control and Prevention published the results of an internal review of the controversial 1997 data, which strongly suggested a link between S. atra and pulmonary hemorrhage among the Cleveland infants. In this review, the CDC identified many limitations to the study design, collection, and interpretation of data. The inadequacies of the first study were so numerous that the CDC rejected its conclusions and now says that there is not sufficient evidence to link S. atra to the infant deaths in Cleveland.5 While this is being debated, S. atra and other toxigenic molds still represent the possibility of high damage claims against HVAC designers, manufacturers and, contractors.

Toxic and non-toxic molds have generated litigation for construction defects in commercial buildings and for personal injuries to individuals. The suits have been filed against contractors involved in the maintenance of HVAC systems. One such case involves the Martin County Courthouse in Florida (Centex-Rooney Construction Co. Inc et al. v. Martin County, Florida).

Centex-Rooney entered into a construction management agreement with Martin County in 1985 to serve as the manager of construction of the courthouse and adjacent buildings. Centex assumed complete control over the site and project, including the selection of all subcontractors and the management and inspection of all their work. Centex completed the project in 1988; however, in early 1989 the county made several complaints to Centex about window and exterior wall leaks, mold growth, and excessive humidity. An investigation revealed problems with the HVAC system. While Centex and its subcontractors attempted to remedy the problem, the humidity remained. The complex was evacuated in December 1992 after more than 50 percent of its 218 employees developed SBS symptoms.

An IAQ expert hired by the county discovered a significant presence of two highly unusual and toxic molds that were not specifically identified in public documents. The county filed suit against Centex, their sureties, the project architect, and the concrete and masonry construction company for breach of contract and negligence for the improper design and construction of the courthouse. While the HVAC manufacturer and designers were apparently not sued directly by Martin County in this action, there is the possibility of continued litigation by way of a cross-complaint for indemnity filed by Centex against the various subcontractors that it hired.

Prior to trial, the county settled with the architect and the concrete and masonry construction company for $2.75 million. The jury awarded $14 million to the county for the existing damage to the courthouse facilities. On appeal, Centex claimed that the scientific principles underlying expert testimony--studies linking exposure to the toxic molds found in the buildings with health risks--were not generally accepted in the scientific community. The Florida Court of Appeals rejected Centex's claims, stating that each expert testified about numerous publications that were accepted in the scientific community.

According to the Centex-Rooney decision, plaintiffs may expand their causes of action from negligence for construction defects to negligence for personal injuries. IAQ plaintiffs may take the position that buildings and/or the HVAC system within are defective products.

What, then, if anything, can manufacturers, designers, and contractors involved in the construction and maintenance of HVAC systems do to avoid or limit liability for these types of potential lawsuits ?

Design specification for HVAC systems should include attention to factors that will minimize moisture accumulation. The HVAC system installed in any commercial building must be well-maintained, inspected, cleaned on a prescheduled and periodic basis, and repaired as needed. Inadequate maintenance may cause growth and dissemination of molds--toxic and non-toxic. There must be reasonable and consistent control of temperature and relative humidity. Finally, there should be a commissioning phase before a building is occupied to identify potential HVAC defects.

REFERENCES

1) Gene J. Heady, "Stuck Inside These Four Walls: Recognition of Sick Building Syndrome Has Laid Foundation to Raise Toxic Tort Litigation to New Heights," 26 Tex. L. Rev. 1041, 1056 (1995.)

2) Thad Godish, "Sick Buildings: Definition, Diagnosis and Mitigation" 75 (1995)

3) "Toxic Effects of Indoor Molds", Pediatrics, Vol., 101 April 1998.

4) "Infant Pulmonary Hemorrhage in A Suburban Home With Water Damage And Mold (Stachybotrys atra)." Environmental Health Perspectives Vol. 107, No 11, November 1999.

5) "Update: Pulmonary Hemmorhage /Hemosiderosis Among Infants," MMWR, 49 (09); 180-4, March 10, 2000.

Emily Wheeler is an associate attorney with the firm Becherer, Kannett & Schweitzer in Emeryville, Calif. She specializes in cases involving asbestos contamination as well as SBS litigation. She can be contacted at ewheeler@bkscal.com

For More On Mold...

The articles listed below, which are from HPAC Engineering, provide more information about mold in buildings. They are currently available on HPAC Engineering Interactive's online archive at www.hpac.com.

1. "Controlling Airborne Respiratory Diseases," by W. Kowalski, PE and W. Bahnfleth, PhD, PE, July 1998.

2. "Responding to Indoor Air Quality Problems," K. Naumann and D. Lamecker, July 1998.

3. "A Holistic Approach to IAQ," A. Streifel, MPH, October 1998.

4. "Integrated Commissioning Avoids IAQ Pitfalls," R. Wilkinson, PE, March 1999.

Updated May 18, 2000