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The Battle over Mold: Report from the Front

BY Stephen R. Mysliwiec
October 02, 2003

Over the last 2 years, there has been an explosion in lawsuits by owners of residential and commercial properties seeking compensation for the cost of remediating mold-related damage. Mold has become the new 'tort du jour' in the construction industry. With the rise in mold claims, homeowners and owners of commercial property have scurried to review their first-party property insurance policies to determine whether they are insured for such damage.

In anticipation of the expected flurry of first-party insurance claims and lawsuits regarding coverage for mold damage, there have been numerous articles written about whether such claims are covered. These articles have attempted to predict how the courts will rule on such claims, much like handicapping an election or a sporting event. But of course ' as in an election or a sporting event ' the real question is not who should win but who actually is winning.

A pitched battle is currently being waged in the courts between first-party property insurers and policyholders over whether the cost of remediating mold damage is covered by first-party insurance policies. This article is a report from the front lines of the battle. A baker's dozen first-party mold cases have been decided to date by the courts. Both insurers and policyholders can claim significant victories in these early decisions. Neither side, however, has been able to find a legal doctrine or policy provision that has enabled it to deliver a knockout blow. The battle rages on.

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