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Mold
changes dream house into nightmare
Homeowners, builders and insurance companies increasingly are wrestling in
court.
 By
Chris O'Malley
chris.omalley@indystar.com
www.indystar.com
December 14, 2003
The
kitchen calendar reads January 2003. The clock on the stove perpetually
flashes 12:00.
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 parents'
house.
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 hospital overnight.
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
situation.
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 company said.
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
weather-repellent.
The codes were written
because brick is porous and can become saturated with water.
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 &
Associates.
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 house.
Health hazard
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."
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