E-Alert: April 2003 Toxic Mold Claims

E-Alert: Toxic Mold Claims/”Concurrent Causation” Exclusions

As we reported several months ago, our office, on behalf of several insurance carriers, has engaged in a concerted effort to obtain a judicial declaration of the viability of the “concurrent causation” lead-in preamble which frames the mold exclusion contained in most MSO-based policies. Not surprisingly, most of our motions to determine this issue summarily have met with judicial resistance. Trial judges are generally hesitant to resolve such issues of first impression prior to costly, protracted and – in our opinion – unnecessary discovery.


We are pleased to report that Joel Werbel and Eric Harrison, in a declaratory judgment action filed by our complex litigation team in MercerCounty, recently obtained a ruling that the MSO “lead-in preamble” operates to bar a claim for mold-related damage, regardless of cause.


The lead-in language in question provided that:

We do not provide insurance under Section I for any sort of damage or loss directly or indirectly, wholly or partially, aggravated by, consisting of, or resulting from the following – even if loss otherwise covered contributes to such concurrently or in any sequence.  [MORE]

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