TESTIMONY OF NEW YORK STATE INSURANCE DEPARTMENT BEFORE

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1 TESTIMONY OF NEW YORK STATE INSURANCE DEPARTMENT BEFORE THE JOINT SENATE COMMITTEES ON HEALTH AND ENVIRONMENTAL CONSERVATION REGARDING THE ISSUE OF TOXIC MOLD MAY 23, 2002 TESTIMONY BY GREGORY V. SERIO SUPERINTENDENT OF INSURANCE NEW YORK STATE INSURANCE DEPARTMENT

2 - 2 - I. INTRODUCTION Good morning. I would like to thank you, Chairman Hannon and Chairman Marcellino, and all other Members of the committees for the opportunity to testify at this hearing. Armonium, aspergillis, penicillium, stachybotrys, chartarum and trichoderma. These are the ominous sounding names of just a few varieties of the tens of thousands of mold types found in our environment. Mold has existed since time immemorial and is an integral part of the ecological fabric. Mold is ubiquitous. Mold spores are everywhere including the air that we breathe everyday. So why this sudden attention to something that has flourished on our planet since not long after its creation? Over the past few years, there has been an increased sensitivity to the possible health effects of mold and an explosion in some jurisdictions in moldrelated litigation. Stachybotrys, otherwise known as black mold, has become the mantra for many environmentalists, mold abatement/remediation contractors and litigants. Plaintiffs in such lawsuits are pursuing building owners, architects and contractors as well as their insurers for bodily injury and property damage claims on both a first-party and third party basis. The more common type of litigation involves a property owner pursuing a first-party claim against the building s insurer. While the overwhelming majority of molds are harmless, exposure to some types is reported to have potentially harmful health effects.

3 - 3 - The vigorous litigation and the warning signals issued by insurance carriers have fueled the recent interest in mold among the public and the media, even if it has been around us forever. II. CURRENT STATE OF MOLD COVERAGE IN INSURANCE POLICIES Coverage for property damage done by mold is generally excluded under a property policy unless it is a consequence of a covered loss such as a burst water pipe or wind-driven rain. For example, the 1991 Insurance Services Office, Inc. (ISO) homeowners policy excludes coverage where mold occurs naturally due to moisture and relative humidity. ISO is a rate service organization that generally serves as the property and casualty industry standard for policy terminology and practices. Mold damage typically is not covered under the policy because it is viewed as a home maintenance problem as opposed to a peril of a fortuitous nature. Only when there is some causal link between the mold and the covered peril would the policy provide coverage. Liability policies in New York, on the other hand, do not have any exclusions specifically related to mold; however, some may construe the pollution exclusion and a series of property damage exclusions found in the policy as a basis for denying coverage for mold-related claims.

4 - 4 - III. MAGNITUDE OF THE PROBLEM Is mold the next asbestos or lead paint? Given the lack of clinical research on this issue as well as the limited information available at the present time, I believe that no one has the ability or the expertise to appropriately answer this question. However, the very comparison of mold to these other matters that have proven to be significant and ongoing challenges for insurers has been cause enough for concern if not alarm. Some in the industry as well as a number of attorneys believe the number and size of toxic mold claims will equal or exceed those asbestos and lead claims with respect to potential litigation. They claim that mold related losses will increase exponentially and could be a threat to the solvency of the insurance industry for the following reasons: 1) the construction of residential and commercial buildings with sealed environments due to the energy crisis of the 1970 s; 2) the use of substandard building practices which may promote mold to grow more quickly; 3) the greater use of central HVAC systems that may increase the spreading and re-circulation of mold spores; 4) the sudden media attention to mold-related illnesses; and 5) the organic nature of mold that makes it more difficult to remediate and prevent.

5 - 5 - On the other hand, others believe that while mold is certainly a cause for legitimate concern by the insurance industry, there are several reasons why mold cases will not be litigated to the same extent as asbestos or lead paint cases. These reasons include: 1) Most mold-related claims are primarily filed as first-party claims under the insurance policy covering the property. Most of the asbestos and lead-related losses stemmed from third-party claimants; and 2) Mold claims are likely to have a much shorter trigger period than asbestos or lead paint claims and will not involve the aggregation of policy limits of decades of coverage. Nonetheless, as evidenced by the following examples, the potential exposure of the insurance industry to mold-related claims is real and must not be ignored. In the now famous Ballard case, a Texas jury awarded Melinda Ballard and her family $32 million in their case against Farmers Insurance Group for mold damage to her home. The jury found that Farmers improperly handled Ballard s water claim from which toxic mold developed, eventually taking over the family s home. Here, in New York, an employee of a New York community college filed a suit for $65 million alleging injury due to exposure to toxic mold. There was also a recent $1.7 million settlement in Kips Bay involving 160 lawsuits representing 500 tenants. The lawsuit claimed that the mold in the apartments caused various health problems

6 - 6 - ranging from respiratory disease and nosebleeds to death. The plaintiffs had sought $12 billion in damages. The recent outbreaks of mold contamination in properties at and around ground zero are just the latest manifestations of the complexity of this issue. IV. THE DEPARTMENT S RESPONSE TO MOLD EXCLUSIONS While toxic mold claims are more prevalent in southern states, most states are now facing or will soon face this issue. The Senate Health and Environmental Conservation committees are to be commended for taking this issue on before it is a crisis in New York. Many of these claims have resulted in judgments involving several million dollars. Given the type and extent of exposure and the scientific uncertainty surrounding mold claims, insurance carriers are requesting mold exclusions and limitations of coverage. To date, the Department has received more than 100 filings restricting mold coverage. In general, our review of these filings has revealed that they tend to be overly broad. Many of these filings have complicated the mold issue by also including language seeking to exclude bacteria, spores and other microbes, in an apparent response to last year s anthrax attacks. Some insurers are requesting exclusions that would apply to mold claims regardless of whether the mold occurs naturally or is caused by an otherwise covered peril. In this respect, I compare the mold exclusions filed with the Department with the terrorism exclusions that followed

7 - 7 - September 11 th. In disapproving the terrorism exclusions filed by 256 insurers as well as ISO, the Insurance Department cited the following reasons: the unrealistically low aggregate loss threshold relative to property values in New York that would be likely to be affected by the exclusion; the inability of property owners to readily determine whether the exclusion actually applied to their insurance coverage, given the imprecise nature of loss estimation; the form s overly broad description of terrorist acts, which would likely exclude losses that, in the public s perception as well as in an insurer s original policy intent, would otherwise be expected to be covered; and the potential adverse effect that the exclusion would have on economic recovery in New York City and on general economic development throughout the state. While overly-broad terrorism exclusions were not found to be the appropriate solution, we indicated our willingness to consider specific, targeted and well-defined terrorism exclusions that enable consumers and insurers to clearly understand the application of the exclusion and the substance of what is being omitted from coverage. More importantly, we challenged insurers to consider redefining the scope and extent of coverage that they would be willing to provide, rather than simply indicating what they would not wish to cover. Similarly, we may be willing to consider any type of mold exclusion that is drafted to be specific, targeted and well defined, or creating new coverage parameters, such as through the

8 - 8 - use of sublimits, for mold risks. But in light of the scarce information and limited clinical research on the issue, we have not yet reached a policy decision regarding the treatment of mold coverage and until such a decision is made, we will not approve any restrictions in coverage. However, we have asked all insurers that have submitted a mold exclusion for our review to provide us with the following additional information: 1) Did the company, to date, receive any property/liability claims relating to toxic mold? If claims were received, what positions were taken on those claims? 2) Whether the company has filed the endorsement in other states and what actions those states have taken to date; 3) In the states where the endorsements have been approved: a) did these states ask the company questions before approving; b) did they request any modification of the originally proposed language; and c) have these states required that the company offer a buy-back and/or required any rate credit? The responses we receive from the industry will influence the course of action we choose to pursue. In forming our position, we have and will continue to monitor the actions of other states particularly Texas and California where the mold problem appears to be most acute.

9 - 9 - V. ACTIONS TAKEN IN THE STATE OF TEXAS Two years ago, there were few mold-related claims filed in the State of Texas. Since then, there have been an unprecedented number of mold-related claims causing insurers to seek elimination of this coverage. In fact, mold-related claims for the three largest homeowner insurers jumped from $9.1 million for the first quarter of 2000 to $79.5 million in the first quarter of After a series of public hearings, the Texas Insurance Department in November 2001 issued an order that retained coverage for removal of mold related to the remediation of certain water damage otherwise covered under a homeowner s policy. It, however, eliminated coverage for high-priced procedures such as testing, treating, containing or disposing of mold beyond that necessary to repair or replace property that is physically damaged by water. Policyholders have the option to purchase additional coverage, up to the policy limits, for these procedures. In addition, on March 8, 2002 the Texas Insurance Department authorized State Farm to sell Texas consumers substantially the same homeowners policy form that the company markets in other states. The approved policy form provides limited mold coverage similar to that adopted in Texas in November Among the approved endorsements is one that gives consumers the option of buying full mold remediation coverage in amounts of $15,000, $25,000, $50,000, or full policy limits. It also offers limited mold coverage to cover damage from "sudden and accidental" discharges of water from plumbing, air conditioning systems and

10 appliances. Unlike the Texas standard policy (HO-B), the State Farm policy does not cover damage from slow leaks or damage to slab foundations resulting from plumbing leaks. The Texas Insurance Department expects the approval of State Farm s national policy to significantly lower homeowners insurance rates for Texans and alleviate the availability crisis that Texas has seen for the past several months. VI. ACTIONS TAKEN IN THE STATE OF CALIFORNIA California, which is second only to Texas in the number of mold-related claims in the United States, is apparently taking a different approach. The California Senate Insurance committee has approved a bill that would prohibit personal lines and commercial line insurers from seeking exclusions from mold coverage as an ensuing loss that is, a loss covering damage from mold following a covered peril. Should this bill become law it would effectively negate the mold coverage exclusions that insurers gained from the California Department of Insurance. Insurers argue that if they cannot exclude mold, then California s homeowner s rates would rise to be the highest in the nation. It should also be noted that in 2001 California enacted the Toxic Mold Protection Act directing the Department of Health Services to, among other things, explore the feasibility of establishing permissible exposure limits, mold assessment protocols, identification and remediation standards, and disclosure requirements as

11 to the presence of mold in residential, commercial, industrial and public buildings prior to the completion of a lease or a sale. VII. ACTIONS TAKEN BY THE NEW YORK LEGISLATURE In New York, legislation similar to California s Toxic Mold Protection Act has been introduced. The bill would create a task force, comprised of public and environmental health officials and various mold experts, to advise the Department of Health on the development of standards for mold exposure limits and to assess health risks and standards for remediation associated with the presence of mold within buildings and structures. This bill, which was introduced in 2001, is currently in the health committees of both houses. VIII. CONCLUSION Setting permissible mold exposure limits could effectively cap mold cleanup costs and reduce the number of potentially frivolous mold-related lawsuits based on alleged health problems. There are now, however, no definitive scientific studies on the health effects of exposure to mold. Some physicians argue that most people will experience only transient irritations such as a runny nose or teary eyes that will clear up once the mold is removed. Others assert that mold causes most chronic sinus infections and can even cause some types of brain damage. Still, most acknowledge that more research is needed. Currently there is no scientific evidence

12 that demonstrates a causal relationship between mold and some of the adverse health conditions being alleged by claimants. While there are some EPA and CDC guidelines, there is no federal or state regulations or standards that address mold prevention or remediation. Clearly, more research is needed. Since there are no regulations provided by the EPA or other state or federal agencies establishing acceptable levels of mold or the amount or kind of remediation that is necessary, some clean-up contractors are recommending that only major, expensive renovations should be performed even when the affected area would not appear to warrant such extensive remediation. This is a costly issue for insurers who are concerned with both over-the-top remediation activities as well as those efforts that prove to be inadequate and therefore subject to further remediation, all likely at the insurer s expense. The mold experience in Texas and California has shown states like New York that we must take appropriate steps to maintain the availability and affordability of property and liability insurance while at the same time properly protecting the solvency of insurers. Texas averted an insurance crisis by limiting mold-related damages. In light of the scientific uncertainty concerning mold-related health problems, the Department has not yet formulated a policy position. We will proceed in such a manner as to ensure that New Yorkers continue to have access to affordable and meaningful insurance coverage. It is the Department s expectation that the bill pending in the New York Legislature will provide us with guidance on

13 the acceptable mold exposure limits and standards for remediation. In the meantime, the Department will not approve any limitations or exclusions for moldrelated coverages until it receives information sufficient to warrant such exclusions or limitations. Thank you and I will be happy to take questions.

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