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November - December 2003


Don’t Become a Victim of Burgeoning Mold Lawsuits
by Richard Walker

The problem of mold in buildings is looming ever larger on the radar screens of the window and door industry. Since the early 1990s, there has been a substantial increase in the number of insurance and legal claims filed by homeowners for damage related to mold growing within moistened wall spaces. 

At first, the claims focused on repair of interior physical damage (e.g., staining). Now, the stakes are much higher, centering on illnesses and toxic reactions induced allegedly through inhalation of mold spores (allergies, respiratory problems, neurological disorders, etc.). These have been the subject of an increasing wave of sensationalist publicity, which has resulted in new anti-mold legislative initiatives. Insurance companies in some states have been pushed to the brink of crisis by mushrooming claims.

The greatest potential damage, however, lies in the personal injury and class-action lawsuit arena. While property owners, builders and insurance companies have been the primary targets of such mold litigation, product manufacturers are appealing deep-pocket targets for the next wave of lawsuits. 

Mold 101
When excessive moisture accumulates indoors, either through water leakage or condensation, mold spores that continually float through the air will begin growing on damp surfaces, developing colonies that release even more spores. 

While most varieties are harmless, a particularly bad actor is a strain called STACHBOTRYS-atra, very dark green to nearly black in color and usually slimy or wet in appearance. It typically grows in dark, moist areas and proliferates on cellulose-based surfaces (such as wood, polymer composites and drywall). Its spores can be hazardous to those few who have a pronounced allergic reaction, a compromised immune system, or who are subject to asthma attacks.

However, some perspective is needed here.

The American College of Occupational and Environmental Medicine has concluded that “current scientific evidence does not support the proposition that human health has been adversely affected by inhaled mycotoxins in the home, school or office environment.”

Dave Golden, director of commercial lines for the National Association of Independent Insurers, sums it up: “In spite of the three-ring circus treatment it gets in the media, mold is just mold. It’s been around forever, it’s easily remediated, and its health threat has been greatly exaggerated and virtually unproven by scientific fact.”

In addition, the presence of interior moisture that supports mold growth typically is not due to leaky windows. Ventilation and HVAC systems, leaky roofs, dripping pipes and poorly-sealed basements are much more likely to be the source of such moisture. Even the occupants themselves, through breathing and perspiring, typically add about two quarts per person per day of moisture to a building’s air, to say nothing of their activities such as bathing, cooking and washing clothes.

Windows and doors that are certified to meet state-of-the-art code requirements (i.e., ANSI/AAMA/NWWDA 101/I.S.-2 or 101/I.S. s/NAFS performance specifications) are effectively resistant to water leakage under typical usage conditions. Products that are thermally efficient according to NFRC 100 and NFRC 500 standards are effectively resistant to condensation. When such windows do leak, it is much more likely to be due to mishandling in the field or poor installation than to poor product design or manufacturing defects. 

Unfortunately, scientific fact or lack thereof has notoriously little to do with the basis for publicity, 
lawsuits or political posturing in legislatures. 

So What’s a Manufacturer to Do?
While there’s no silver bullet against personal injury claims, there are several steps that manufacturers can take to minimize their risk:

Control installation as much as possible. Don’t leave the details of window and door openings up to the installation crew. Pay closer attention to the instructions and training that you provide to installers and record the fact that installation details were provided. The more forward-looking window manufacturers have already realized the need to provide instructions detailing recommended methods for the installation of building paper and flexible flashing. 

In addition, consider using customer service personnel to monitor installation whenever possible and to document any problems. Send a certified letter to the developer notifying them of any observed errors.

Control shipping and handling as much as possible. Provide as much protection as you can to prevent damage from mishandling. Large windows, subject to dragging because they are too heavy to pick up at the job site, should receive particular attention. Also document shipping and handling instructions.

Test product at the shipping dock on a daily basis. Set up a sill rack and perform a sill corner test on a frequent basis using the AAMA 502 method. Remember to document the test results.

• Prepare a maintenance bulletin for the homeowner. Explain recommended periodic maintenance or cleaning to ensure that hardware works and weepholes are not clogged. Recommend weatherstrip replacement after an appropriate period of time. Consider warnings about the possible negative effects of leakage if such maintenance is not done.

Watch the performance of wood and composite materials. Given STACHBOTRYS-atra’s preference for cellulose-based growth media, manufacturers of wood and polymer composite framed products should be particularly alert. 

John Parker Sweeney, a principal in the Baltimore-based Miles & Stockbridge law firm and chairman of the firm’s toxic tort litigation group, has some suggestions for window manufacturers. When designing products and developing installation controls, window manufacturers should take heed of the typical lawsuit plaintiffs’ allegations of the specific ways in which the defendants’ windows are “defective and deficient.” These include: 

• Cladding does not contain sufficient sealant or over/underlap enough to prevent moisture from entering;

• Sash allows for water to enter;

• Poor metal lap practices allow water intrusion;

• Metal to glass intersection doesn’t allow for sufficient sealant;

• Metal nailing straps or anchors are rusting prematurely;

• Window frames are allowing moisture to decay the wall sheeting; 

• Cladding on the exterior and the paint film on the interior allows the entrapment of moisture; and

• Windows are failing to provide a long-term watertight solution.

Sweeney also recommends that manufacturers consider consulting a Certified Industrial Hygienist, a mechanical or structural engineer with expertise in preventing moisture intrusion and/or a lawyer experienced in mold litigation as a means of preparing for the likelihood of a future lawsuit.

We at AAMA are doing our part to stay on top of this issue, too. Our new mold monitoring committee serves as a clearinghouse for information on the mold problem as it relates to windows and window installation. These efforts may evolve into a task group to develop mold inhibition guidelines or specifications.

Above all, window manufacturers should keep a close watch on those radar screens. Treat mold claims 
seriously and be vigilant in responding to complaining customers. 

Richard Walker is executive vice president of the American Architectural Manufacturers Association, in Schaumburg, Ill. 


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