I'm Not in the Mold Business — Am I?
By Greg Crosslin & Jeff Lloyd
March 16, 2004
As virtually everyone in the pest management industry knows, the issue of mold has been a hot topic for many months. It has been the subject of various glamorous television exposes, news clips, editorials, front-page headlines, seminars, conferences and perhaps most importantly, lawsuits. Lately, many pest management professionals have made comments that they are not concerned about mold because "they don't do mold." Several insurance companies vehemently state that "mold isn't covered by their policy" and even the National Pest Management Association has come out with a position paper indicating that pest management professionals are not in the "mold business."
While pest management professionals should not be unknowingly driven into litigation surrounding mold, it is not as easy as simply denying its existence. Conscious decisions need to be made about a number of aspects surrounding individual businesses. The purpose of this discussion is to address how pest management professionals may be involved in "mold" issues and to address how this can be a part of a pest management professionals daily concerns/business.
Why has mold become such a hot topic when molds clearly have been in homes and structures for decades? The answers are simple: money and lack of knowledge. The lack of knowledge is both with regard to the potential health effects and with the actual organisms that pest management professionals deal with. The money is the opportunity to recover a jackpot in a lawsuit.
The first issue to address is the word "mold." What does being in the "mold business" mean? Since mold is not a taxonomic name, it covers a wide variety of items unless it is exactly defined. These can include wood-destroying organisms, as well as fungi like Aspergillus or even Stachybotrys. Dealing with mold could include addressing wood-destroying organisms as part of the everyday practice of pest management. But how much difference is there anyway?
Clearly it is almost impossible to separate mold and decay fungi. If one is present the other is almost certainly present, and both have almost identical potential health effects. Similarly, structural failure also heightens the potential health effects of decay fungi.
Some have offered "this is an excellent reason why all states should go WDI rather than WDO." In our opinion, this is nonsense. According to NPMA (in the NPCA Field Guide to Structural Pests), "Wood decaying fungi cause as much, if not more, damage to structures each year than do termites." Estimated repairs for the year 2000 were projected to be more than $17 billion. Moreover, damage often attributed to termites was actually caused primarily by wood-decaying fungi because moisture conditions favorable for fungi were not corrected. Termites actually prefer slightly decayed wood. The conducive conditions are exactly the same for termites as they are for mold and decay, thus, it also becomes difficult to separate subterranean termites from mold and decay. Where you find termites, you will also likely find mold and decay.
Unfortunately, where money and lack of knowledge is combined, there is often litigation. Lawsuits over mold issues have been filed in 39 states. In the fiscal year ending in 2001, more than 13,000 cases were filed nationwide. According to one survey, approximately 9,000 claims a year have been filed since then. The Texas Department of Insurance, which has an incredible database, reports that the total number of mold claims in 2000-01 was 44,285. The total loss for the time period was estimated at $1,007,038,839. The average claim was $22,740.
The point? The adage, "There's gold in mold" is not just a cliche. So, when a pest management professional says, "I'm not in the mold business," it's important to ask, "Are you sure?"
TOUGH TO TELL.
Despite what many have said and written, it is difficult to argue that PCOs are absolutely not in the "mold business." To check if you may be, ask yourself the following questions:
Do I perform WDO or WDI inspections?
Do I treat wood?
Do I sell poly/vapor barrier or vent jobs?
Do I send employees under crawl spaces or into damp areas to inspect where mold might be present?
Could I potentially disrupt or disturb mold spores when doing any kind of inspection?
Do I have a duty to report conducive conditions (via contract or regulations?).
Even after the questions above many will still argue, "Well, I'm in a WDI state..." or "I don't do molds..." Perhaps this is a valid position. Of course, the flip side question that must be asked is, "What is the difference between ‘conducive conditions' for termites and ‘conducive conditions' for mold?" We have already seen the difference is nothing.
Even if one is in a WDI state, if the pest management professional has to report conducive conditions, the pest management professional may be indirectly involved.
The industry, albeit hesitantly, has somewhat flip-flopped over the issues. Many in the industry began looking at mold treatments as a new market for PCOs. Today however, many in the industry want to have nothing to do with "mold issues." Clearly, there is some confusion within the industry.
For starters, NPMA (in the NPCA Field Guide to Structural Pests) states, "It is necessary to at least be able to determine if the fungus at hand is a wood-decaying fungus or a non-decaying fungus...because different control measures are necessary." Further, it also reports that, "The presence of non-decaying fungi (primarily surface staining fungi or molds and mildew and staining fungi) is a good indication that conditions exist which may soon be favorable for wood-decaying fungi."
Then it goes on to explain what to do about mold. Pest management professionals have followed these recommendations for decades, without issue. Perhaps this means that until states formalize the pest management professional's duty and responsibility, we cannot rely on historical industry definitions to determine with which pests we will and won't be involved.
WHAT ABOUT LAWSUITS?
So, how far are we from a lawsuit alleging that since we are required to know the difference between mold and decay upon inspection, that we have a duty to do so? Well, there have already been lawsuits that allege failure to identify and failure to report conducive conditions and failure to report fungal presence. The lawsuits followed this rationale:
The pest management professional had a contractual duty to inspect property and structure for presence of termites and conditions conducive to termite infestation.
The pest management professional inspected and saw or should have seen an improper moisture condition, fungal growth and conditions conducive to infestation.
The PCO had a duty to report what was seen but failed to do so.
The pest management professional was knowledgeable of the condition and therefore negligently and/or recklessly failed to report the same.
The plaintiff homeowner was damaged by this breach of duty, negligent and reckless conduct.
Unfortunately, the answers to all these issues are not clear to everyone. Nine states have enacted some form of legislation regarding mold. Seven other states have bills pending or rejected. Unfortunately, pest management professionals and state associations have not been involved in this process. Moreover, the U.S. Toxic Mold Safety Protection Act was introduced into the U.S. Congress.
So, you ask, what is the point of all of this? The real question that needs to be addressed is why the issues surrounding mold should be different than any other public health issue addressed by pest management professionals. Is there a difference in PCOs treating for a mosquito infestation to reduce the potential of West Nile virus?
It has become increasingly apparent that the issues facing pest management professionals have nothing to do with mold or potential damage or health effects caused by a specific mold. Instead, it appears that many decisions are being made out of a fear of lawsuits.
If pest management professionals don't want to be "in the mold business," there are a number of things they can do to ensure they are not held liable for mold-related claims. First, they need a disclaimer in their service agreement that disclaims any responsibility for mold. One such sample is as follows:
"This property was not inspected or treated for the presence or absence of health-related molds or fungi. The inspection and treatment was conducted for visible evidence of ‘termites' as defined above and was limited to the visible and accessible areas of the structure only. We are not qualified to and do not render an opinion concerning indoor air quality or any health issues. Questions concerning the presence or absence of health-related issues, which may be associated with this property, the presence of mold, the release of mold spores or concerning indoor air quality should be directed to a properly trained industrial hygienist or the public health department."
Secondly, PCOs can rely on a recent USDA letter to support the position that termite control contracts do not include liability for mold treatment.
Third, pest management professionals need to get their state association, regulatory body and state legislature together and/or on the same page. It's not enough just to claim pest management professionals are not in the business if in fact they just don't intend to be in the business. Of course, if you want to avoid the issue simply because of potential health effects, you may want to look at the other pests you manage. Almost all of the pests that pest management professionals work with have potential negative health effects associated with them, no different from mold.
But, if pest management professionals choose to be in the business then that involves serving customers' needs regarding mold and there are certain things you also need to do. First, make sure service agreements clearly indicate exactly what will and will not be done by fully identifying duties and obligations. The health-related portions of the previously mentioned disclaimer can also be used. Secondly, pest management professionals must determine what, if any, limits are in place by their insurance company. Pest management professionals need to know if they can treat molds because it presents potential health problems like other.