Set a Standard for Mold Claims in New Jersey

By: James A. Kozachek, Esq.

Mold, a simple microscopic organism, is found everywhere.

It grows wherever there is sufficient warmth, food, and humidity – such as in homes throughout New Jersey.

Heat and humidity is present in bathrooms almost every time someone takes a shower or a bath, as well as in attics, crawl spaces and in air ducts where moisture and humidity build up. Mold feeds on paper, food, dust, fabric, cardboard, glue, wallpaper, wood, paint and carpet. Most building materials are a readily available source of nutrition for mold.

Mold can be found in the cleanest rooms in hospitals, research facilities, pharmaceutical manufacturing facilities and computer chip production facilities. With mold even on the clothing we wear and the sheets we sleep in, how is it possible for a plaintiff in New Jersey to file a lawsuit – and win – based on a mold-based injury?

The answer is complicated. It can, however, often come down to the fact that the claim exists in a vacuum without enforceable standards, against which the courts can measure the defendants’ conduct. With no legislated standard, mold cases are often left to whims of the decision makers, most of whom have limited, if any, understanding of mold. For this reason, anyone involved in the construction industry could be victimized by a contextually meritless mold-related lawsuit.

New Jersey must set a very clear standard against which a mold claim can be measured.

While there is no formal legislated standard, there are standards in the industry that should be considered. For example, mold remediation is generally considered unnecessary if no mold is visible. It’s also unnecessary if mold tests don’t show the interior mold levels to be higher than the exterior mold levels. But these standards are not binding as they are not contained in any statute or code.

As a result, no seller, builder, contractor, subcontractor, supplier or landlord served with a complaint about mold contamination has a bright line standard to follow, leaving them at risk. Moreover, most insurance policies contain a mold exclusion, often preventing a party sued by a mold claimant from getting needed coverage for their defense.

There needs to be clear standards to measure a party’s need to remediate an alleged mold condition, as well as to measure a successful remediation. Once a standard is established, it should be easier to secure insurance coverage, as long as there are carriers willing to offer coverage where reasonable assurances of compliance with legislated standards can be established by the insured.

In addition, the law should require that only experienced medical doctors should be able to offer evidence as to the health impact of a mold condition. All too often, industrial hygienists or the claimant themselves are improperly allowed to offer such testimony.

Legislation now before the Senate and Assembly Environment Committees (S-2633 and A-3773) would establish a process for the creation of an indoor standard for mold hazards and certification of mold inspectors and abatement workers.

While S-2633 and A-3773 are a step in the right direction, they are incomplete and could, unless amended, make the problem worse. The procedure for creating the referenced standards should be modified to include significant contribution from the regulated community. It should not be left to the State government alone to create such a standard. Moreover, a standard should be added against which a successful post-abatement test can be measured. A single post-abatement test is sufficient and this new law should confirm this. Requiring any more than one such successful post abatement test subjects the test results to too many uncontrolled variables that are unfair to the person or entity being held responsible for the cleanup. Finally, the law should clarify that a person certified as a mold tester cannot also be certified as a mold remediation contractor. There is an inherent conflict of interest between those testing for mold and designing the remediation plan and testing protocol and those who perform the remediation. A tester can too easily exaggerate a condition to secure more remediation work and significantly increase costs if they also occupy the role of the remediation contractor. Those two professions and professional certifications should remain separate. Setting a standard is the right idea, but it must be done completely and correctly, or it will make a bad problem significantly worse.