Mold Legal Guide
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Mold changes dream house into nightmare
Homeowners, builders and insurance companies increasingly are wrestling in court.
By Chris O'Malley
December 14, 2003
Mary McKinstray (left) and her sister, Joan, were forced to abandon this $250,000
Carmel home. They say the house is infested with mold due to shoddy building
practices. -- Frank Espich / The Star
The kitchen calendar reads January 2003. The clock on the stove perpetually
The day Mary McKinstray fled her $250,000 Carmel home and her possessions is
frozen in time.
"My doctor said, 'If you value your life, never go in that house again,' "
said McKinstray, a former Merck drug saleswoman who has moved into a spare bedroom in her
In a lawsuit filed in April against Precedent Homes and the home's builder,
Robert W. McKinney, McKinstray alleges her house in Precedent's Ashbury Park is contaminated
with toxic mold that sickened her for months. The worst was a seizure that put her in the
Precedent counters that environmental tests did not find any harmful levels of
mold. McKinney "disagrees with the buyers' allegations that there is a mold problem in the
home, or that the home presents any risk of harm," said his attorney, Joe Wendt.
Increasing public awareness of health risks from mold has homeowners checking
baseboards and crawl spaces for signs of moisture. Some, like McKinstray, are filing lawsuits
against builders who, they say, are unresponsive to homeowners' concerns.
One of the area's largest builders -- Trinity Homes -- and parent Beazer Homes
Investment Corp. face at least two lawsuits from homeowners this year over mold concerns. The
companies are tearing out and replacing brick in dozens of their newer homes.
Nationwide, the insurance industry estimates that 10,000 mold-related lawsuits
are pending, up 300 percent from 1999. In 2001, a Texas jury awarded a couple $32 million for
mold in their home, though the amount was later reduced to $4 million. Television personality
Ed McMahon won a $7 million award from his insurance company over mold.
In Indiana, where insurance companies are not required to cover mold in
homeowner's policies, builders often become the focus of litigation.
Homeowners, attorneys and home inspectors blame mold on sloppy construction --
particularly involving homes with brick walls.
Some point to the home-building boom that tempted busy builders, desperate for
labor, to hire bottom-of-the-barrel masons and other subcontractors. Those crews often failed
to allow for a sufficient air gap between brick and the outer wood sheathing. Overwhelmed
municipal building inspectors couldn't keep pace with the construction frenzy.
Whether construction quality is worse than ever is debatable. But experts
agree that mold-related health problems may be more common today because of tighter,
energy-efficient designs that reduce ventilation.
"The mold issue -- every jurisdiction in Central Indiana is experiencing it,"
said Jeff Kendall, building commissioner of Carmel.
Who should be held responsible for mold and what health danger it poses
increasingly are being fought over in court, as attorneys see mold as gold.
Precedent Homes, which arranged the sale of the home to McKinstray but did not
build it, said an environmental testing service it hired determined that the mold was isolated
and not hazardous.
"In addition to our own analysis, we received a copy of the mold assessment
report by another reputable environmental firm hired by the homeowners, which concluded the
indoor mold spore concentrations were in an acceptable range," Todd Fenoglio, president of
Precedent Homes, said in response to the McKinstray suit.
McKinstray said it's just the opposite -- that the tests showed dangerous
levels of the microtoxins aspergillus and penicillium.
Her suit in Hamilton Circuit Court alleges elevated levels of toxic-producing
fungi in the air, on attic framing and on crawl space framing.
Problem starts with brick
The suit attributes crawl space mold to loose fiberglass insulation that
transferred moisture onto floor joists. It cites an improperly installed vapor barrier and
poor ventilation in the space.
The lawsuit also alleges inadequate caulking around windows and says mold in
the attic probably stemmed from wet wood during construction.
While wood has allegedly caused problems in McKinstray's home, many mold
complaints come from residents of new homes with brick exterior walls.
Not long after Frank Bireley and his family moved into their new home last
year in Williamsburg Villages in Hendricks County, their 10-month-old daughter developed a
persistent cough. It grew worse, and she was hospitalized. A specialist at Riley Hospital for
Children made a link to mold.
Bireley's builder, Trinity Homes, hired a firm to assess the house for mold.
The problem was traced to bricks that were butted tight against a moisture
barrier covering sheathing that is nailed to wall studs.
Bireley grew impatient this fall when he could not get an idea of when Trinity
would make the repairs. "I also threatened to put a sign in my yard," he said. His home is
near a new Trinity development.
He received a call from Trinity's law firm, which he said had sought his
daughter's medical records. Bireley, who works in the legal department of a large insurance
company, refused. He argued that the builder was placing itself in a precarious legal
About a month ago, workers showed up at his house with hand-held jackhammers
and tore out bricks where an environmental testing firm found moisture problems. "It looks
like you could pick up our house and move it to Afghanistan," Bireley said.
So far, Trinity has been helpful. "We love the house," he added.
Hundreds of homes involved
Trinity, which builds 500-600 homes a year and is among the city's 10 largest
builders, is facing mold complaints at several other developments in the area.
Last month, Christopher and Mary Colon filed a lawsuit in Hamilton Superior
Court against Trinity and parent Beazer. The suit, seeking class-action status, alleges that
improperly applied brick caused mold infestation at the Colons' 2-year-old home at Prairie
Crossing in Noblesville.
The moisture problem potentially involves hundreds of Trinity homes in
Indiana, said the couple's attorney, Richard Shevitz of Cohen & Malad LLC in Indianapolis.
The suit complains that Trinity has not offered to buy back mold-damaged homes
in Prairie Crossing, despite doing so in its Brittany Chase development, where Trinity said it
has bought back four homes.
The builder has not made buyback offers at other developments, including
Arapaho Point, Huntington Woods, Spring Farms and Plum Creek, the complaint states.
Trinity responded in a statement Friday that there have been a number of
refinements in its remediation plan, which it said was developed by a national expert.
"Remediation has been our goal and our practice from the beginning," the
Meanwhile, Noblesville building inspectors responding to consumer complaints
have sent Trinity a letter. It states that the company's homes under construction are subject
to additional inspections -- both when bricks have been applied in the initial stages and
again later, said Noblesville Planning Director Steve Huntley.
Residential building codes adopted by cities must be at least as stringent as
those adopted by the state.
Generally, if the sheathing nailed to the outside of studs is
"water-repellent," Indiana requires masons to maintain a 1-inch air gap between the brick and
the sheathing. If the gap is less than 1 inch, a "weather-resistant" membrane -- such as
asphalt paper or Tyvek wrap -- must be applied to sheathing that is deemed to be
The codes were written because brick is porous and can become saturated with
But enforcement has been difficult because of the speed at which brick goes up
and the limited number of inspectors.
"What sometimes happens is they have masons with varying degrees of skill that
do not always maintain that air space. It's very difficult to camp an inspector out at a
project when the brick is going up," said Carmel building official Kendall.
"You can go there one day and there's no brick at all. And then three days
later, it's all covered," said Jerrold Hochstedler, a seasoned home inspector for CW Schnepf &
No state standards
When Hochstedler finds moisture problems, it's often because masons have not
left an air space or don't wrap the wood sheathing in a barrier.
Another problem is when an air space becomes clogged with mortar, said Doug
Wehr, president of Clear View Home Inspections. Mortar can pull moisture from brick into wood
and drywall, especially if a vapor barrier is missing or damaged.
When inspecting a house under construction, Wehr takes a flashlight and looks
for debris in the gap between the brick and the house. Conscientious masons will keep a rope
laid horizontally in the space to catch falling mortar and pull it out, but hardly anyone does
that anymore, he said.
Unless the problem is caught during the inspection process, homeowners might
not notice it until they become ill.
Indiana has no legislation to set standards for mold exposure in homes. A
House proposal to create a mold task force died last year in the legislature.
California's "Toxic Mold Protection Act," which became law in 2001, includes a
study on adopting exposure limits for indoor mold. The law requires that guidelines be
developed for removing mold and disclosing its presence when renting or selling property.
At least 10 other states have enacted or are considering mold legislation,
according to the National Association of Mutual Insurance Companies.
One problem legislators and industry experts have encountered is that there
are hundreds of types of molds, and they affect people differently.
"We've seen it . . . where it doesn't bother the husband, and the wife is
having seizures," said R. Ross Williams, president of Artec Environmental Monitoring, an
Indianapolis company that tests homes.
McKinstray said she didn't have breathing problems -- let alone asthma --
before moving in December 2001 from a rural area near Mount Vernon, Ill., to Carmel to be
closer to her parents. At one point when she lived in the Carmel house, her doctor said she
lost nearly 40 percent of her respiratory capacity.
"I had a bad respiratory infection within weeks. I always joked that in the
drug industry, we never got sick," she said. At one point, McKinstray said, "I couldn't get
out of bed for almost two weeks."
The first visual clue to a problem came when she and her sister, Joan -- also
a plaintiff in the lawsuit -- were decorating. "The first picture we tried to hang, we sunk a
molly bolt, and the drywall crumbled."
They also noticed shell fungi growing on a wood-siding wall in the back of the
McKinstray won't re-enter the house, and others also have been cautious.
McKinstray shows a photo she took of a dry-cleaning company employee who arrived to assess the
condition of her clothing. He was suited up in a chemical suit and respirator.
Last Christmas, McKinstray had another seizure. She said a serious sinus
condition followed in January.
That was the last straw.
"Within a week of moving out of the home, my coughing disappeared."
Meanwhile, she continues to press Precedent to fix the home, which she
estimates could cost $70,000.
McKinstray said Precedent has refused to buy back the house. She purchased the
home through Precedent and argues that she didn't know until closing that McKinney built the
house. She alleges that Precedent agreed to provide a warranty and should be held responsible.
Precedent's Fenoglio said his company corrected a number of problems with the
house and "made numerous good-faith efforts to rectify any and all legitimate concerns
presented by the buyer."
But McKinstray won't go inside. Peering through the windows is as close as she
now gets to a dream home she thought would be the last place she'd ever live.
"I almost think of it as having a fire or tornado, except what we own is still
sitting in it."
Call Star reporter Chris O'Malley at 1-317-444-6081.