Cynthia J. Stephens Governo Law Firm LLC 260 Franklin St. Boston, MA 617.737.9045

1. Advances In Environmental Mold Issues in MassachusettsMay 4, 2004 - EnviroExpo ConferenceToxic Mold and Mildew: A Creeping Catastrophe? Emerging Trends in Mold Claims Cynthia J. Stephens Governo Law Firm LLC 260 Franklin St. Boston, MA 617.737.9045

2. Presentation Outline • Liability Theories • Guidelines and legislation • Protecting yourself

3. Landlords Owners Design Professional Contractors Construction Manager Subcontractors Realtors Building Management Suppliers Manufacturers Insurance Companies Condo/Associations POTENTIAL PARTIES

4. THEORIES OF LIABILITY4 Major Claims: • Negligence – Duty, breach, causation, damages • Strict Liability – Fault Not Necessary • Contract • Owner-Contractor • Lease • Breach of Warranties • Express and Implied (Fitness and Habitability) • New in Mass: Latent Defects in new homes. • 1 year to initiate claim against builder for defect caused by improper construction or design.

5. THEORIES OF LIABILITYOther Claims: • Constructive Eviction – Landlords • Quiet Enjoyment • Warranty of Habitability • Reprisals • Nuisance and Trespass • eg. Water interferes with a neighbor’s property • Spoiliation • Chapter 93 A

6. THEORIES OF LIABILITYOther Claims: • Fraud • Misrepresentation • Failure to Disclose • Bad Faith/Coverage • Worker’s Compensation • ADA

7. Statute of Limitations • Negligence – 3 years • Breach of Contract – 6 years • Breach of Warranty – 3 years • Chapter 93A – 4 years

8. Statute of Repose • Creates second time limitation for those engaged in improvements to real property. • Architects, Engineers, Contractors and Sub-contractors • Personal injury or property claims must be brought within statute of limitations, but not more than 6 years after “Substantial Completion” of the improvement.

9. Guidelines and Legislation • Guidelines - Less restrictive - Advice • Standards – Guideline becomes “Industry Standard” – magic words • Statutes – The law • Regulations – How to follow the law

10. Mold Guidelines • CDC – Questions & Answers on Stachybotrys Chartarum and Other Molds • EPA – Brief Guide to Mold Moisture and Your Home • NYC Dept of Health – Guidelines on Assessment and Remediation of Fungi in Indoor Environment • Proposed Federal Legislation – Melina Bill (HR 1268) US Toxic Mold Safety and Protection Act of 2003

11. Protecting Yourself:Contracts & Documentation • Most lawsuits result from misunderstandings about the services that were to be provided. • Contracts communicate what services you will provide and how they will be provided. • Reduce liability with careful and precise wording of each clause in your contract. • In certain instances, “Limitation of Liability” provisions may be appropriate.

12. Protecting Yourself:Contracts & Documentation • Lack of documentation is one of the weakest links in any legal case. • Before starting work: • Document your promises to the client in writing can prevent misunderstandings that lead to lawsuits. • After work begins: • Work documentation, especially documents containing the customer’s signature is the best defense of a claim.

13. Protecting Yourself:Contracts & Documentation • Develop documentation to answer questions that prospective clients may have. • Explain: • The methods you will employ. • How long the remediation will take. • The likely effectiveness of the remediation, and the factors that affect the effectiveness of the remediation. • Which materials will be retained, and which will be discarded. • The standards by which the job will be deemed a “success” or complete.

14. Protecting Yourself:Contracts & Documentation • Sample Agreement:

15. Complete Self Protection • Insurance Coverage: • Know the scope of your coverage • Asset Protection • Incorporate • Homestead

16. THANK YOU !!!