MOLD DAMAGE INSURANCE CLAIMS
The majority of mold insurance claims typically arise in one of two circumstances:
Mold comes to the property owner's attention along with the discovery of ongoing moisture buildup, water leakage or water intrusion that has gone on for some time below the property owner's radar; or
After a sudden, accidental flood or leak from a plumbing system or appliance, there is a delay in or failure to adequately dry out water damaged building products, fixtures, furnishings, finishes or belongings. The certified technicians at Five Boro Mold Specialist have been trained to detect any water damage and/or intrusion affiliated with the property.
If you are making a claim to your own insurer for damage to your property, you are making a "first party" property claim. If you are asking your insurer to investigate or defend a claim against you–for example, your tenants are suing you for mold contamination–you are making a "third-party" liability claim to your insurer. Five Boro Mold Specialist provides all of our clients with a detailed report that will assist with any type of insurance claim. The following are some helpful pointers for each type of claim.
PROPERTY DAMAGE COVERAGE
THIRD-PARTY LIABILITY COVERAGE
INSURANCE CLAIM TIPS FOR MOLD DAMAGE
PROPERTY DAMAGE COVERAGE
Homeowner, commercial property owner and renter property policies differ in kind and in scope from insurer to insurer. Whether mold contamination is covered under your policy will depend on the specific policy language and the cause or causes of the mold contamination. Read your policy carefully. Some property policies are "specified peril" policies, which may cover mold contamination if you can prove that it is caused by one the listed "perils" or causes. Some property policies are "all risk" policies, which may cover mold contamination, unless the insurer can prove that the cause(s) or the mold contamination itself is excluded in the policy. Five Boro Mold Specialist provides the most comprehensive investigation of the property to verify the exact cause of water damage to further assist in your claim.
Most property policies have a long laundry list of exclusions for damage caused by mold, dry or wet rot, corrosion, pollution, wear and tear, deterioration, faulty workmanship and materials, construction defect, and the like. To make matters more complicated, some policies have limited "exceptions" to the exclusions– kind of like a double negative–that may provide some very limited coverage for mold contamination. In several states, like California and Texas–in response to insurers threatening to boycott coverage for water damage, as well as mold contamination coverage–insurance regulators are developing rules to permit insurers to provide minimum mold contamination coverage, e.g., $5,000 property limits, unless the policyholder buys more expensive coverage separately. Check your policy after it has been renewed to see if mold coverage limitations have been inserted.
When, however, mold contamination develops as a secondary or "ensuing" problem from water damage that is covered, your insurance company may cover the additional cost to remediate the mold contamination. With the inspection that Five Boro Mold Specialist offers we will be able to determine if the damage is covered under the client's insurance policy. All findings are detailed in the customary report provided, specifically formatted for insurance submission. More often than not, the real fight with your insurance company is over identifying the most important cause or causes of the mold contamination–are they covered or excluded? The jury is still out in most states as to whether mold is a "pollutant" within the meaning of most pollution exclusions.
As a general rule, most insurers attempt to exclude coverage for mold contamination associated with long-term leakage, moisture or water intrusion from a construction defect, wear and tear, deferred maintenance or poor repairs. Most insurers will acknowledge coverage for mold contamination associated with accidental discharge of a closed plumbing system–as long as you take reasonable steps to protect and repair the property after you discover the damage. Accordingly, never speculate or guess about the cause(s) of the mold contamination or suggest to or agree with your insurance company that the mold must have been around for a long time or that there must be some hidden leak somewhere. Wait until all the investigation is completed before you acknowledge or agree as to the cause(s) of the loss with your insurance company. Five Boro Mold Specialist will provide you with all the proper information to determine the source and/or cause of the water damage.
Once you determine that you have a covered loss, be sure to go down the list of all the coverages in your declarations page, including additional living expense (if you have to move out during repairs), and make sure that you explore all the benefits you are entitled to.
THIRD-PARTY LIABILITY CONVERGE
In most liability policies, your insurer agrees to defend you if you're sued, and to reimburse ("indemnify") you if get hit with a judgment. Somewhere in between, there is a duty to settle claims against you. The duty to defend you is much broader than the duty to indemnify you: typically the insurer must defend you if the person suing you alleges facts that merely potentially seek damages within the coverage of your policy. You only have to show that the claim might be covered; the insurer has to show conclusively that the claim cannot under any circumstances be covered. Accordingly, immediately tender the defense of any lawsuit against you to your insurer by sending a copy of the complaint and summons and asking for a defense. Don't wait. Tender early and often. You may not be able to recover attorneys' fees you have to pay before you tender your defense to your insurer. If your insurance company refuses to defend you, consult a policyholder attorney to analyze your policy and the claims against you. Mold analysis and reports submitted by Five Boro Mold Specialist are widely acknowledged and accepted by insurance companies for reimbursement for water and/or mold related damages based on individual coverage.
INSURANCE CLAIM TIPS FOR MOLD DAMAGE
1. TAKE MOLD CONTAMINATION SERIOUSLY
Mold can cause serious illness and property damage. Insurance claim representatives, adjusters and industry consultants are fond of dismissively telling policyholders that mold has been around as long as people have been living in houses. But with the introduction of mass-produced building products, tract home construction techniques, residential and commercial buildings have become more susceptible to developing mold contamination in any moist breeding ground. Mold contamination can destroy building products, finishes, furnishings, and belongings, and cause mild to serious health consequences to those exposed. If you suspect you may have a mold problem, contact a certified mold inspection company as soon as possible to ascertain the severity of the mold growth while avoiding further damage.
2. CALL YOUR INSURANCE AGENT AND REPORT A SUSPECTED CLAIM IMMEDIATELY. PUT EVERYTHING IN WRITING
Call your insurance agent immediately upon receipt of your inspection report from Five Boro Mold Specialist to report the suspected claim and submit the full Mold Inspection Report. Follow the phone call with a fax, an email and a letter. In a catastrophic flood or pipe burst claim, getting a remediation team in within the first 48 hours to begin drying out property can be crucial to preventing or containing mold growth. Five Boro Mold Specialist has all of the proper tools to extract and dehydrate any moisture caused by recent water damage and remediate mold growth in all scopes of work.
If you get the run-around from your agent, insurance company, independent adjuster, or restoration company, follow up with a fax, an email and a letter confirming their delay in responding. Be firm, but always be courteous.
Take detailed notes of every conversation, including the name, company, phone number, address, and job title of every insurance adjuster, representative, consultant and contractor you deal with. Confirm all agreements in writing. Insist that appointments and deadlines be honored. Keep a log or binder of all notes and letters. Ask for and keep business cards from everyone involved in your claim.
3. PROTECT ALL PROPERTY FROM ANY FURTHER DAMAGE, BUT DO NOT MAKE PERMANENT REPAIRS, AND DO NOT DISPOSE OF ANY DAMAGED PROPERTY UNTIL AFTER IT HAS BEEN INSPECTED
During an inspection, the technicians at Five Boro Mold Specialist document all damages with the use of infrared imaging as well as visual digital imaging, which are provided in your Mold Inspection Report.
Turn off any water flow to broken appliances or pipes. Take any necessary emergency measures to protect the building and personal property from any further damage. Do not throw anything away until you have documented its condition. In mold claims you typically need to have the mold sampled by a Mold Inspection Compay and analyzed by a microbial laboratory.
If there is roof damage to your building, you may need to hire a contractor to cover it with a plastic tarp or tent the building to protect against bad weather. If the insurer delays in authorizing these measures, or in getting back to you, confirm the insurer's delay in a fax, email and a letter, and take whatever reasonable measures you can afford to protect the property. If your loss is covered, the insurance company should also cover the cost of any reasonable emergency measures you had to take to protect your property. It is not unusual for an aggressive insurer to deny coverage for damage resulting after the initial claim on the grounds that you failed to protect the property from further damage.
4. REVIEW YOUR POLICY CAREFULLY. UNDERSTAND YOUR COVERAGES
If you don't have a complete copy of your policy, get one from your insurance agent. Review the "declarations page," which tells you the coverages you have, the policy limits for each coverage, and the effective dates of the policy. Review the fine print of the policy from what's insured, what's excluded, and what you have to do to prove your claim. Review any "endorsements" added on to the policy form to see if they change, eliminate or add coverages to your policy.
5. PHOTOGRAPH, VIDEOTAPE AND INVENTORY ALL DAMAGED PROPERTY. DOCUMENT YOUR LOSS AS THOROUGHLY AS YOU CAN, AND DON'T EXAGGERATE, GUESS OR SPECULATE ABOUT THE LOSS OR THE VALUE OF ANY PARTICULAR PIECE OF PROPERTY
Photograph, videotape and inventory all damaged property. Make sure you record the date of the photos and videotape. It is important to document the source and extent of water intrusion, and visible mold contamination. In a dispute with your insurer over whether any particular building component, finish, furnishing or belonging is contaminated, the item may need to be tested by a remediation consultant–the insurer's and perhaps your own. Don't throw these items away until any such issues are resolved in writing. As part of our detailed inspection, Five Boro Mold Specialist will photograph and document each and every damaged area throughout the property to insure you the appropriate coverage available for your claim.
In most states a material misrepresentation, concealment or omission–even an unintentional one–made in connection with the claim–for example, claiming that an item was destroyed that really wasn't, or substantially overstating the value of a damaged item–may give your insurer a valid excuse to reject the claim and even rescind the policy. It is not an uncommon tactic for adjusters and claim representatives who are predisposed to reject or lowball a claim, to ferret out even minor discrepancies between your first recorded statement and subsequent recorded statements, and argue that these discrepancies constitute material misrepresentations sufficient to reject your claim. Don't give them the opportunity. Don't exaggerate, speculate or guess about the loss or value of any particular piece of property. Make it clear to your insurer when your recollection may not be accurate, and when you are estimating value, and on what you are basing your estimate. Five Boro Mold Specialist will provide a detailed analysis of both the treatment process necessary for repairs as well as the corresponding costs associated with the mold abatement.
6. UNDERSTAND YOUR RIGHTS. LEARN YOUR STATE'S LAWS THAT REGULATE HOW INSURANCE CLAIMS ARE SUPPOSED TO BE HANDLED
Every state has statutes and regulations that set minimum standards for handling insurance claims. You usually can find these laws through your state department of insurance or insurance regulator website. You can also call your state's department of insurance or insurance regulator for information.
7. YOU MUST COOPERATE WITHIN REASON WITH YOUR INSURANCE COMPANY'S INVESTIGATION AND HANDLING OF YOUR CLAIM, BUT DO NOT GIVE A RECORDED STATEMENT, A SWORN STATEMENT OR A SWORN "PROOF OF LOSS" FORM UNTIL YOU ARE SURE YOU UNDERSTAND YOUR RIGHTS, YOUR INSURANCE COVERAGE AND THE FULL EXTENT OF YOUR CLAIM.
You have a contractual obligation under your insurance policy to cooperate with your insurer in its investigation and handling of your claim. You do not have an obligation to allow yourself to be abused. In most states you and your insurance company have a reciprocal obligation to act in good faith and deal fairly with each other to investigate and process your claim. This means that each of you should avoid taking any unreasonable position or doing or saying anything that would unreasonably frustrate each other's rights under the policy. The insurer should never make an unreasonable request to you. You should never refuse a reasonable request from your insurer for information related to your claim.
Your insurer may require you to give one or more recorded statements. Use your own tape recorder to tape your statement and the insurer's questions. More often than not, insurers and their attorneys delay or refuse to give you a copy of your recorded statement. Do not give a recorded statement until you are sure you understand your rights, your insurance coverages, and the full extent of your claim. Five Boro Mold Specialist will assist in recommendations for this process upon completion of a full inspection, to insure the statement corresponds with the information provided in your Mold Inspection Report.
Your insurer may ask you to make available various documents related to your claim, including banking statements, investment reports, receipts and other personal financial documents. You are not required to produce your tax returns, but you are required to produce any other documentation reasonably related to your insurer's investigation of your claim. Your insurer can require you to produce these kinds of documents as long as they are reasonably related to its investigation. Do not provide these documents to your insurer until you are sure you understand your rights, your insurance coverage and the full extent of your claim.
Most policies require that you submit a "sworn proof of loss" form to your insurer within a certain amount of time after being provided the form. In most states you are contractually obligated to submit the sworn proof of loss within the time limit, or at least to substantially comply with the requirement, unless you get an agreement from your insurer for more time or an agreement to dispense with the sworn proof of loss. Do not submit the sworn proof of loss to your insurer until you are sure you understand your rights, your insurance coverages, and the full extent of your claim. It is not unusual for an aggressive insurer to use mistakes in the sworn proof of loss to reduce or reject coverage for a claim.
Aggressive insurers may keep asking you for more and more information, anticipating that at some point, you will draw a line in the sand. If, however, you refuse to comply with reasonable requests for a recorded statement, an EUO, a sworn proof of loss, or documents reasonably related to your insurer's investigation, you may be giving your insurer a valid excuse to deny your claim, based solely your purported breach of the duty to cooperate. If you believe that any requests are unreasonable, ask you insurer to explain the reason for the requests in writing. Err on the side of caution. If in doubt, consult with a policyholder attorney, a public adjuster or your state department of insurance, before you say "no way" to a request that may–in retrospect–turn out to have been a reasonable one.
8. NEVER SIGN A RELEASE, WAIVER, INDEMNITY OR "HOLD HARMLESS" AGREEMENT WITHOUT PROPER LEGAL ADVICE.
You should never have to sign a release to settle an undisputed claim. If your insurer, adjuster, consultant or contractor asks you to sign a release, waiver, indemnity or hold harmless agreement, ask them to explain why in writing. These kinds of agreements can be used to deprive you of rights and benefits forever. These kinds of agreements can obligate you to pay thousands of dollars for issues that come up down the road that you never anticipated. Consult a policyholder attorney as to your rights before signing any such agreement.
9. GET A SECOND OPINION. DON'T ACCEPT A LOWBALL OFFER
Be wary of "lowball" estimates from insurance friendly contractors. Get a second and even a third written estimate to repair and replace damaged property from reputable, independent professionals that you would hire to do the actual work. You are entitled to have your damaged property replaced with "like kind and quality." Insist on it. When you can't match the remaining undamaged tile, wallpaper, carpeting, or other portions of undamaged property, you are entitled to have the entire "line of sight" replaced to match. Insist on it. Five Boro Mold SPecialist provides a comprehensive detailed Mold Inspection Report, specifically outlining any and all damages relating to your claim as well as their severity.
Make sure that you understand how your insurance policy pays out on covered claims. Some losses are paid on "actual cash value," which in many states can mean either the "fair market value" or the cost to replace the property, less depreciation for age, wear and tear. Some losses are paid out on a replacement cost value. Your policy may permit your insurer to pay you actual cash value, and withhold the additional cost to replace property until you actually go out and replace it. In recent years, some insurers have attempted to also withhold an amount for contractor "profit and overhead." Don't let them. Policyholder attorneys and some insurance regulators have successfully prevented insurers from withholding these amounts.
If you have a disagreement with your insurer over the amount of your claim, you may be required by your insurer to submit the dispute to "appraisal." Appraisal is a form of binding arbitration to settle disagreements over the amount of your claim. It typically does not decide disagreements about what is covered, what is not covered, what caused the loss or poor claims handling problems, unless you and your insurer agree to submit those additional disputes to the appraisal. While appraisal was initially designed to be an inexpensive, informal resolution of insurance disputes, insurers have turned it into one of the most expensive, over- lawyered, and dragged out sideshows in insurance claim resolution. If you cannot resolve a dispute with your insurer over the amount of your claim, or your insurer demands appraisal, you should consult with a policyholder attorney.
10. THOROUGHLY INVESTIGATE THE QUALIFICATIONS, LICENSE, AND REFERENCES OF YOUR INSURANCE COMPANY'S "APPROVED" CONTRACTOR BEFORE AGREEING TO HIRE THEM TO DO THE REPAIRS
You do not have to use consultants or contractors recommended or "approved" by your insurer to perform repairs. "Approved" contractors are typically contractors who have agreed to discount their labor and costs, and follow insurer guidelines, in exchange for a volume of business from the insurance company. If your insurer promises to "guarantee" the approved contractor's work, the "guarantee" is generally limited to replacing any defective materials or correcting faulty workmanship. Your insurer is not insuring against any contractor delays, negligence or liability. Accordingly, do not use the "approved" contractor unless it is a contractor that you would independently hire to do the work after a thorough screening.
Be sure to check that each contractor's license is valid, and for any complaints against the license. Be sure that the contractor is bonded and insured. All our technicians at Five Boro Mold Specialist are certified, insured and bonded and always guarantee to work in your best interest.
11. GET PROFESSIONAL HELP IF YOU NEED IT
If you reach an impasse with your insurer, be sure to document the dispute fully in writing. Explain why your position is reasonable, and your insurance company's position is not reasonable. If your dispute does not necessarily require legal advice, you may be able to resolve the dispute by calling your state's department of insurance or insurance regulator, or by hiring a public adjuster. If your dispute requires legal advice, contact a lawyer who is experienced and specialized in representing policyholders.
12. MAKE SURE YOU KNOW ALL THE DEADLINES THAT MAY CUT OFF YOUR RIGHT TO FILE A LAWSUIT.
All states have statutes of limitation that will cut off your right to bring a lawsuit against your insurance company if you don't file a lawsuit in time. The statutes of limitation differ from state to state. Most property insurance policies have a shorter contractual limitation period that will cut off your right to bring a lawsuit against your insurance company if you don't file a lawsuit in time. These periods are typically one year or two years after a loss occurs or after you first discover a loss. Sometimes the "clock" stops running during the time your claim is pending, and starts again once your insurer denies your claim. In most states your insurance company is required to tell you in writing that your claim is denied, and that the limitations clock is running. Make sure you understand all possible deadlines. Consult with a policyholder attorney sooner, rather than later. You will make it harder for a policyholder attorney to give you the representation you deserve, if you show up on her doorstep the day before the clock stops ticking.
13. REPORT ALL UNFAIR CLAIM HANDLING TO YOUR DEPARTMENT OF INSURANCE OR INSURANCE REGULATOR.
Most state insurance regulators track policyholder complaints about their insurers and compile the results. The results may be available through your state insurance regulator's web site. In some states you can file a formal complaint online. Insurance regulators also regularly compile "market conduct" reports on unfair claim practices. If you don't file a complaint, you can't make a difference.
NYC MOLD LITIGATION
Mold is expected by many legal experts to be the next "movement" of toxic tort litigation and liability. Within the past few years, mold has gained nationwide media attention, affecting a wide scheme of various specialized industries, involving homeowners, landlords, tenants, luxury property owners, management companies and property managers, developers, realtors, contractors and employers in multimillion dollar lawsuits.
That being said, Toxic mold litigation appears to be on the rise, along with insurance claims for mold damages as well. As both continue to grow, individuals facing possible mold issues are urged to respond accordingly by consulting with a certiﬁed mold inspection and remediation company. Five Boro Mold Specialist will perform a full investigative property inspection, documenting any and all water and/or mold damages incurred throughout the premises.
Mold infestation is generally a result of water damage and/or ﬂooding, seepage, leakage, condensation as well as excessive moisture and humidity which provide conditions conducive to both visual and/or airborne mold growth. Mold litigation against a builder and/or contractor generally relies on evidence that the builder/contractor failed to prevent water inﬁltration or actually caused the water inﬁltration, generally through poor rooﬁng, drainage or piping. Mold cases against landlords are generally based upon thier failure to make repairs, thereby resulting in moisture buildup and/or subsequent mold growth as well as their failure to remove the mold. Property owners may be found liable based on constructive notice, where they should have known of a defect, either the cause of mold growth, such as any water intrusions and/or the mold growth itself. Damages are in most cases, recovered for both repairs of the property as well as personal injuries including harm and health due to acute or long term mold exposure.
The presence of mold growth in an affected area can result in extensive property damage and/or personal injury. Plaintiffs in mold litigation commonly allege a number of illnesses or health effects as a result of both short and long term mold exposure including, asthma, rashes, fatigue, red/itchy eyes, runny nose, as well as various respiratory difﬁculties and even sick building syndrome. If you have been exposed to mold growth and are experiencing any of these symptoms, Five Boro Mold Specialist will provide a comprehensive inspection, including sampling of surface(s) as well as air quality throughout your premises. Your samples will then be sent to an independent microbial laboratory for analysis. The results will detail if mold is present, as well as the type of mold present and will also list various health effects associated with the forms of mold found.
Finalizing an outcome in mold litigation is typically dependent on establishing sufﬁcient causation between the plaintiffʼs alleged injuries and the speciﬁc species of mold spores. Causation is established when the plaintiff is able to prove "general causation", that the speciﬁc species of mold growth is capable of causing the plaintiffʼs speciﬁc injury in conjunction with "speciﬁc causation", that the plaintiff was actually exposed to a signiﬁcant amount of the alleged toxic mold sufﬁcient to cause the plaintiffʼs injury.
Therefore, in order to establish causation, Five Boro Mold Specialist will perform mold sampling throughout the allegedly contaminated premises. Five Boro Mold Specialist will then be able to provide expert witness testimony as well, if and as necessary.
Due to the surge of mold cases, residential real estate companies are increasingly recommending to both their agents and clients to have a mold inspection performed prior to purchasing a new home. If you are in the process of purchasing a new home, have the property inspected by Five Boro Mold Specialist prior to closing to insure that there are no hidden water and/or mold damages present throughout, while also insuring that the conditions present within the home do NOT facilitate mold growth.
Should you have any further questions regarding mold litigation and/or real estate transactions requiring a mold inspection as a prerequisite, feel free to contact our ofﬁce at 718-677-6653 and we will be glad to assist you.
!!! NOTICE !!! NEW YORK ASSEMBLY BILL A01466 (2011) Mold is a type of fungus that appears in areas of a home or property that have been exposed to water. In order for mold to develop, it requires a combination of moisture, warmth and an organic matter to feed on. There are over a thousand variations of molds, both toxigenic and non-toxigenic, that can thrive in a home. Molds spread and reproduce by releasing countless tiny, lightweight spores, which travel through the air.
The bill is intended to set standards and practices for the handling of indoor mold in both real property and public housing. It includes three major specific provisions:
Section 1 amends the public housing law by adding section 16-a, which directs and authorizes the commissioner to create procedures for the remediation and prevention of mold.
Section 2 amends the public health law by adding article 48-A, which authorizes the commissioner to publicize standards in the detection, prevention, and remediation of indoor mold within environments subject to the rules of the department.
Section 3 amends subdivision 2 of section 462 of the real property law, as added by chapter 456 of the laws of 2001, by adding questions 19-a and 19-b, which pertain to indoor mold, to the Property Condition Disclosure Statement.
NEW YORK PUBLIC HEALTH LAW SECTION 1384 (2005)
Article 13, Title 11-A, Section 1384 of the Laws of New York was passed in 2005. The law formed the New York Toxic Mold Task Force with the following duties:
Assess, based on scientific evidence, the nature, scope and magnitude of the adverse environmental and health impacts caused by toxic mold in the state;
Measure, based on scientific evidence, the adverse health effects of exposure to molds on the general population, including specific effects on subgroups identifiable as being at greater risk of adverse health effects when exposed to molds;
Identify actions taken by state, and local governments, and other entities;
Assess the latest scientific data on exposure limits to mold in indoor environments;
Determine methods for the control of mold in a cost-effective and environmentally sound manner and identify measures to mitigate mold; and
Prepare a report to the governor and the legislature that assesses the current body of knowledge on toxic mold, provides the status of toxic mold in the state, and assesses the feasibility of any further actions to be taken by the legislature or state agencies as recommended by the task force