September 6, 2005
Ohio Courts and Mold
Polk v. Landings of Walden Condominium Assn., 2005-Ohio-4042
The facts pertinent to this appeal are as follows: Appellants purchased their condominium in 1989, and obtained homeowner’s insurance from appellee Lumbermens in 1990. According to appellant Herbert Polk’s deposition, between 1990 to 1997, appellants experienced persistent water intrusion problems in their unit, including leaks around the sliding doors and roof leaks around the chimney. Appellants reported these leaks to the Landings for repair.
In August 1996, Bob and Dorothy Harold (“the Harolds”), appellants’ neighbors, filed a complaint against the Landings alleging that their unit was water/mold-damaged as a result of the Landings’s failure to adequately repair the roof of their condominium.
In August 1997, at the request of the Landings, Philip R. Morey, director of microbiology and vice president of Air Quality Sciences-Building Consulting, Inc., tested the Harolds’ and appellants’ units, as well as two other units, for toxic mold. Dr. Morey testified in his deposition that he found a high level of penicilliumaspergillus and an elevated level of stachybotrys, two toxigenic molds, in appellants’ condominium. Dr. Morey recommended fixing the moisture problem in appellants’ unit, removing the fungal growth found in the basement storage room, and retesting. Dr. Morey indicated that the mold was discoverable on the date of inspection and opined that the occupants of the dwelling would have been able to see the visible mold.
In February 1998, appellant Herbert Polk stated that two representatives of the Landings, William Hauserman and Byron Krantz, came to their unit, told appellants that there was some moisture in the lower level storage room, and that they should get a dehumidifier. Both Hauserman and Krantz testified in their depositions that they specifically instructed appellants that mold was present in their unit. Hauserman and Krantz told appellants to clean the mold with bleach and to place a plastic sheet over the mold to prevent spreading. However, appellants denied that they were ever told about the presence of mold during the February 1998 meeting,
but stated that they were instructed to purchase a dehumidifier to remedy the moisture problem, which they did.
In October 1998, the Landings replaced the roof on appellants’ unit. Appellant Herbert Polk indicated that approximately two to three years before the roof was replaced, he noticed and treated about two to three times an accumulation of mildew on the outer surface of the ceiling in appellant Marilyn Polk’s office on the north side of the stairwell heading up to the third floor of the condominium.
In November 1998, Dr. Morey prepared a written report of his findings regarding appellants’ and the Harolds’ units. In January 1999, appellee Lumbermens policy period expired. In March 1999, appellants obtained insurance coverage with appellee Cincinnati. In May 1999, appellants reported water leaks around their sliding door and ultimately the gutters, flashing, and siding were replaced.
In February 2000, the Landings settled the Harolds’ lawsuit. The Harolds ran an advertisement in the local newspaper which stated that their unit was infected with toxic mold. Appellants requested Dr. Morey’s 1997 written report at that time in February 2000. Appellants again reported water from the top of their sliding door, and rotted wood was replaced in addition to repairs to the siding, flashing, and gutters.
On February 14, 2000, Nyzen Consulting (“Nyzen”) performed an inspection of appellants’ unit. On or after February 14, 2000, appellant Herbert Polk spoke with a representative from Nyzen who informed him that black mold was found in appellants’ basement. On March 27, 2000, appellants were mailed copies of Dr. Morey’s and Nyzen’s reports. In April 2000, after appellants received copies of the reports, they never returned to their condominium from their winter residence in Florida. Also, in April 2000, appellants gave notice of a water/mold claim to appellee Lumbermens and appellee Cincinnati.
In January 2001, appellants sustained a plumbing break in the second floor bathroom. According to the depositions of appellant Herbert Polk and John Telesz, a forensic engineer hired by appellants to inspect their condominium, the leak lasted for approximately four and a half days before being discovered and leaked about 62,000 to 63,000 gallons of water into appellants’ unit which caused extensive damage. Telesz testified in his deposition that he was not an expert in mold. Telesz opined that the sources of past or present moisture incursion in appellants’ unit consisted of leaks in the breezeway roof, the main roof around the chimney, around the sliding glass doors, and in the lower level shower as well as moisture infiltration through the main roof.
Pursuant to the trial court’s July 30, 2004 “Stipulation of Dismissal and Judgment Entry,” appellants settled and dismissed all claims against the Landings and Aurora; settled and dismissed all contractual claims for scheduled personal property against appellee Cincinnati and appellee Lumbermens; and settled and dismissed all claims for bad faith, lack of good faith and/or all other extra contractual claims against appellee Cincinnati and appellee Lumbermens. The trial court stated that by virtue of the foregoing settlements, all of the trial court’s prior rulings on summary judgment shall become final and appealable. It is from that judgment that appellants filed a timely notice of appeal and make the following assignments of error:
[1.] The trial court erred in finding the mold exclusions contained in the carriers’ policies precluded coverage for the water damage done to [appellants’] dwelling and unscheduled personal property and for their claim for loss of use.
[2.] The trial court erred in determining the issue of efficient proximate cause as a matter of law.
[3.] The trial court erred in holding that [appellants’] claim against
[appellee] Lumbermens for the water intrusion damages was not timely filed.
Trial Court's ruling was upheld on appeal Full Opinion
answer on June 6, 2001.
Posted by joewest at 11:46 AM