Plumbing contractors are at particular risk in the latest trial lawyer scam.

Frankenstein, Dracula and the Bogeyman don't scare anyone in our enlightened 21st century. The blood-curdling monsters of today bear names like Stachybotrys, Aspergillus, Chaetomium and Pennicillium. Don't worry about pronouncing them. They go under the simpler terms of fungus or mold. They are denizens of hell that get conjured up throughout the land by high priests of black magic otherwise known as trial lawyers.

Toxic mold litigation is one of the hottest scams going in America today. That's where homeowners and commercial building tenants, egged on by the aforementioned sorcerers, sue everyone in sight over real or imagined ailments induced by mold growth resulting from moisture in confined spaces.

All that's needed to enact a massive redistribution of wealth from hard-working folks to our society's inflated victimization class is a sick person, a slick lawyer, one of those medical "experts" whose full-time job is testifying in court and a gullible jury. In this kind of civil litigation, it is not necessary for the trial lawyer to prove a case beyond reasonable doubt. All s/he needs to do is concoct a plausible case of mold infection for juries whose ideal composition for plaintiff attorneys would be an inability to even spell biology.

Researching this issue leaves one feeling transported back in time to around the year 1000 A.D., when maladies of every kind could be attributed to evil spirits and witchcraft. The medical facts presented to juries about mold contamination have a similar clarity about them. Headaches, sniffles, rashes and a variety of aches and pains all get attributed to mold contamination, and who's to say it can't be true, because it's impossible to prove a negative. Toxic mold litigation is about tugging the heart strings more than establishing cause and effect.

Facts, Not Fiction

Almost everyone gets exposed to mold in the home or at work from time to time. The reason we aren't all keeling over is because not all strains are toxic, and casual exposure even to toxic strains can be shrugged off by the average person. A tiny percentage of people have allergies that do cause them to get seriously ill from exposure to certain strains of mold, and they form the litigant pool. At least at first.

As with asbestos, the caseload already is expanding to encompass not only people with ailments, but class action quests on behalf of everyone who gets exposed to mold, whether they get sick or not.

It's right to feel compassion for folks afflicted with mold allergies, but does fairness demand millions in compensation for contamination of uncertain origin? Some people suffer life-threatening reactions to peanut butter or other common household substances. These people have to take precautions to avoid exposure to the allergen. Yet, would it make sense to sue everyone who makes and sells peanut butter? (Hope I'm not giving anyone ideas here.) Besides, all strains of mold, toxic or not, can be removed by combining bleachy household cleansers with a little elbow grease.

I know this from personal experience. Several times a year my wife gets out a spray bottle of nasty smelling disinfectant and points me toward our bathroom. Next time she messes with me when there's a football game on, I just might sue her for recklessly exposing me to the spores from hell. I have not the slightest doubt of finding some panting litigator to represent me.

Contractors At Risk

In a more sensible world, all this would have nothing to do with this magazine's audience of noble people who protect, not endanger, the public's health. However, occasionally plumbing leaks, or may be alleged to do so. Moisture that seeps into a building can serve as a breeding ground for the organisms capable of making a tiny percentage of people miserable. Even more to the point, people in a plumbing business usually have assets that trial lawyers would prefer to see in their own coffers.

The bandits of the bar really smelt the meat a cookin' last year when a jury in Texas awarded an already wealthy family $32 million, payable by Farmers Insurance Co., for mold contamination supposedly originating with a bathroom leak. This was on top of $1.4 million in remediation costs paid by Farmers prior to the award.

The company has since dropped out of mold coverage, as have many other home insurers. They now tend to categorize mold as a form of pollution, which most policies exclude from coverage. This means home insurers are now less ripe for plucking than business liability carriers and the clients who pay the premiums.

Toxic mold has become an ingredient in the soup of construction defect litigation that has been a favorite of the trial bar for a couple of decades. This is not to say some builders don't deserve to be sued. It is to say that the structure hasn't been built that doesn't have molehills of imperfections that can be made mountain-sized by a forked-tongue attorney. So crass have they become that in parts of the country, particularly out West, builders and subcontractors now have trouble obtaining liability insurance at any price for residential construction.

Architects, engineers, builders, GCs and subcontractors from various trades, along with manufacturers, suppliers, and of course the insurers, typically get named in these lawsuits as fingers point every which way. In the case of moisture, it's often impossible to pinpoint the source. Nor is it clear how to apportion blame among building products, design or installation flaws, or simply poor housekeeping.

One would think that if your products and workmanship don't cause leaks, you ought to be immune to toxic mold and construction defect lawsuits. Don't bet on it. Lawyers are trained to bend truth, justice and the laws of nature into unrecognizable shapes when arguing who's to blame. Ironically, mold growth tends to be enhanced not by poor construction, but by work done right to provide an airtight, energy-saving indoor environment. Ventilation tends to inhibit fungus development.

Even if you don't get sued, you're still paying a steep price. If you haven't renewed your general liability policy recently, brace yourself for a big shock. Premium increases in the 20 percent to 30 percent range are the norm, even more for companies with poor loss results.

What To Do About It

I would like to conclude this piece with some uplifting advice about how to avoid getting caught up in the toxic mold lunacy. I could say, be sure to install plumbing that doesn't leak, although I suspect you may already strive to do that.

The sad truth is that toxic mold litigation is one of those aggravations of modern life that can jump up and bite you no matter how well you perform your work. It is such a potential money maker for the ambulance chasers you can count on it following the same trend line as asbestos hysteria, which over the years has bankrupted dozens of outstanding corporations and forced people to spend billions of dollars on unnecessary and often counterproductive removal projects.

Mold insurance and remediation costs are already headed into the stratosphere. For instance, the St. Charles school district in suburban Chicago has spent an estimated $24 million in mold remediation expenses during the past year. "Every time we sit down to discuss numbers, they are getting bigger," said one school board member. I'm sure similar stories abound throughout the land. School districts that can't find the funds to pay decent teacher salaries or fix the plumbing nonetheless are forced to cough up megabucks for repairs that aren't even needed by any rational calculation of risk.

It's worthwhile having a conversation with your insurance carrier to make sure you're covered for toxic mold claims, and to clarify circumstances that might jeopardize the coverage. It also provides one more incentive for dealing with manufacturers and suppliers you can trust to stand by their products and back you up in the event of unwarranted lawsuits. And, you can work with your trade association to enact product liability reform at the federal and state levels.

Oh, and cross your fingers if you ever do work for anyone with a tort lawyer in the family.