Mold litigation is an interesting area of law because the average person, including lawyers, judges, and jurors, knows that mold can be dangerous, but also knows that it’s everywhere in Florida. And, that’s true – mold is everywhere. However, there are a number of different types of mold – some more dangerous than others – and some of those types should never be found indoors. Others shouldn’t be found in certain quantities, and some are indicators of bigger problems like ongoing water leaks. Aside from being an area where there is little by way of common knowledge, insurance coverage is either excluded, limited to $10,000, or limited to $50,000. Very few policies carry coverage without limitation. So, what does that mean for your claim for injuries or property damage due to mold? It means you need to know your rights, the proper valuation of your claim, and the best strategy to get there.
At Carpenter Gandhi, we most often deal with tenants who move into a property with a mold problem and their landlord refuses to spend the money to properly remediate the situation. Sometimes the tenants notice visual signs or smells associated with mold, while at other times the tenant doesn’t realize until they begin noticing a decline in health – whether it be respiratory illness, sinus infections, general malaise, or something more obvious, like a rash. In attempts to resolve their symptoms, they see doctors, who attempt to quell the symptoms. Eventually, doctors or research point them to the possibility of mold. And, after professional mold testing, they find that their suspicions were correct. They then notify their landlord and yet nothing is done – forcing them to lose personal property, face treatment for their exposure, and move immediately, even if it means possibly breaking a lease.
What should I do if I think I have mold?
The first step should be to notify your landlord – immediately and in writing. If you have a written lease, look to it regarding notification and make sure you send notification by that means (i.e. to the property manager, via certified mail, etc.) If your landlord sends a professional to test for the presence of mold, allow such test to take place immediately and request the results in writing. Most likely, you’ll be denied access, but make the request – you may need it for medical treatment, for example. If your landlord attempts to spray bleach or paint with “Kilz,” request professional testing. And, if your landlord refuses, hire your own professionally licensed mold assessor to test the property. (In fact, you may want to hire your own professional to test regardless of whether your landlord hires someone.) If the results show mold, notify your landlord of the results.
Testing shows mold, but your landlord won’t remediate – what should you do?
Get out. Under Florida Statutes, Chapter 83, you have to provide your landlord an opportunity to remedy his or her violation of §83.51, but if you followed step one, you have likely accomplished this. Now, it is simple to say get out, but more difficult to do. We often get calls saying that for one reason or another, moving is impossible. However, for health and preservation of property, you cannot continue to live in a property you know to have mold and then bring a successful claim later – essentially you are knowingly exposing yourself to the danger you are complaining about… so, a claim would be exponentially weakened, not to mention the potential damage to your health and property.
I’m out, but I’m still not feeling well – when do I bring my claim?
Once away from the mold exposure, you may begin feeling better quickly. Or, you may continue to not feel well and need further treatment. You won’t want to bring a claim until your doctors have decided you are at maximum medical improvement – basically the legal terminology for saying you are all healed up or this is as good as it is foreseeably going to get. And, that may come with a future treatment plan in and of itself. However, once treatment is completed, you can move towards putting a valuation on your claim.
What’s my mold claim worth?
If you search the internet for mold injury or mold verdicts, you are going to get a plethora of wildly inflated results on the first pages. Now, those numbers aren’t necessarily made up, but they vary based on the state and the facts of each case, but largely due to the state. States vary widely in their landlord-tenant laws and their insurance laws. Put those two together in Florida, and you’ll find you are working uphill, pushing a boulder, when it comes to personal injury and property damage claims due to mold. As I mentioned at the beginning of this post, nearly every home-owners’ insurance policy in Florida has one of three limitation for mold coverage: absolute exclusion, $10,000 limit, or $50,000 limit. Now, if you only have minimal property damage and you had to see a doctor a couple times for a sinus infection, limits of $10,000 would well cover your claim. However, that may not be so if you were particularly affected, your entire family was affected, and you have thrown out bedroom sets and couches. Quickly, you’ll find that that these limits impose issues with valuing your claim.
While there’s no magic formula, start with the hard numbers (“special damages” in the legal jargon) – the money you spent or lost. For property, write it all down and start working through values… what you paid for it and what it costs to replace it. Then move to incidentals like moving expenses and hotel stays. Finally, move to out of pocket medical expenses (NOT what insurance covered). Keep in mind that whatever insurance covered will likely be paid back to insurance through a process called subrogation, but that’s a topic for a different post.
Once you have these numbers, you can move to pain and suffering and loss of use. Here’s where we see there’s a potential to go a bit “off the rails.” Do not mistake a good case for liability and causation for being a case where you are entitled to punitive damages. Being able to prove negligence easily is not the same as reaching the threshold where the Court will allow damages that are designed to punish the landlord.
And, here’s where the problem with the internet search comes into play. You may see an award in California for $200,000 and wonder why you are being advised your case is worth $20,000 in Florida. The answer isn’t simple, but it is due to a combination of landlord-friendly laws, insurance laws allowing mold exclusions and limitations, and, most importantly, due to Florida juries returning relatively low verdicts in mold cases. Also, keep in mind that if you go to trial, a jury won’t see that your landlord has insurance – they will only see your landlord sitting at that table (rules prohibit juries from being informed about insurance coverage). Importantly, juries in Florida are made up of Florida residents, and while Florida residents tend to know that there’s mold everywhere, they are probably unfamiliar with mold testing, remediation, and the potential harm it can cause.
Keep in mind that while the numbers may not compensate you in the hundreds of thousands, even after attorney fees (often done on contingency) and subrogation, you’ll still be left with money to replace property and/or seek medical treatment. Now, that is not to say that your claim may not be technically worth more than even the $50,000 policy limit, but it is to say that you may want to think long and hard before you risk a relatively low verdict or not being able to collect – the things lawyer ads telling you that you should go to trial leave out.
While this post provides you with some helpful tips, if you find yourself in the unfortunate situation of dealing with a potential mold claim, your best bet is to consult with an attorney and discuss the particular facts of your situation.