EXPOSURE TO MOLD CAUSES BAD FAITH CLAIMS

If the average mold claim in Texas for the 2-year period from January 1, 2000 to December 31, 2001 was $22,740, inclusive of allocated loss adjustment expenses (but could be more or less, on account of shortcomings in the data collection techniques), then why are some lawyers so anxious to get their hands on mold insurance claims? Easy - because mold insurance claims make ideal bad faith cases.

As discussed above, the Ballard case, despite its status as the Marbury v. Madison of mold litigation, was really a bad faith insurance claim. Even Melinda Ballard would likely say so. Testifying on July 18, 2002 before the Congressional Subcommittees on Housing and Community Opportunity and Oversight and Investigations, she stated, "[B]y early February of this year, there were more than 16,000 homeowners with insurance claims that began as relatively inexpensive water damage claims and because of wrongful denials or disputes over proper repairs, the claims turned into expensive claims requiring remediation of toxic mold." Shortly thereafter, in an August 5, 2002 open letter to the insurance industry, posted on her Policyholders of America website, Ms. Ballard put it a little more bluntly. Describing the nearly 19,000 American families that are members of her organization, she stated, in part, as follows:

All of our members are homeowners who have been victimized by wrongful delays, denials and disputes over coverage. In every situation, the actions of the insurance company involved turned simple water damage into massive toxic mold infestations. None of us wanted to get into a pissing match with our insurance company. We were content with our lives and are not litigious people. But, none of us are going to lay down and let someone or something run all over the top of us, destroy our property and health and then blame us for the problem. Our goal is not to cause financial turmoil. We want insurance companies to be healthy and strong. Otherwise, you could not pay claims. However, we are adamantly against bad faith and fraud, regardless of who commits it. Unfortunately, our group sees far too many instances where the insurance company did not honor its policy and the result was the destruction of property and health.36

Melinda Ballard’s message is simple - water damage, left unabated, is likely to cause mold. Therefore, water damage claims must be handled by insurers expeditiously. Moreover, Texas Insurance Commissioner José Montemayor has sent the same message to insurers. In a September 18, 2001 statement to residential property insurers addressing mold, Commissioner Montemayor offered the following advice:

Insurers can help reduce mold exposures by improving your response time in water damage cases. Testimony by experts at my public hearings indicated that mold can be stopped from forming if the moisture source is eliminated within 48 hours. Testimony from some homeowners indicated that it sometimes takes a week or more for a company’s insurance adjuster to answer the policyholder’s call. In some cases, the policyholders were told to do nothing until the adjuster arrived. This type of slow reaction and bad advice must stop. Company staff must be trained to react quickly to water damage claims and to tell policyholders to proceed quickly to stop the flow and begin the drying process before the adjuster arrives.37

While it is easy to say that if the moisture source is eliminated within 48 hours, mold will not form, coverage determinations in actual water damage claims are likely to be far more complex and far less cut and dry. As a threshold matter, mold caused by water damage may not be covered under the policy. Without getting into a full-blown analysis of homeowners’ and other first-party property coverage, it is generally recognized that mold is not covered under such policies, unless it is the result of a covered peril, such as a burst pipe. Mold that is not the result of a covered peril is considered to be a home maintenance issue, which is not covered by insurance.38

However, even this seemingly straightforward "covered" or "not covered" inquiry can sometimes be anything but. In Shirley Cooper v. American Family Mutual Insurance Company, 184 F. Supp. 2d 960 (D. Ariz. 2002), the court examined coverage for what appears to have been a garden-variety mold homeowners’ claim. A plumbing leak damaged dry wall and flooring in the master bedroom and hall closet of the insured’s residence. American Family paid for repairs to the dry wall and flooring, but, citing a policy exclusion, denied coverage for mold damage caused by the leak. While some might say that this looks like a situation where the mold damage should be covered because it is the result of a covered peril and not a home maintenance issue, the federal district court did not agree. The Cooper court noted that some courts have applied the "efficient proximate cause" rule to conclude that coverage exists when an insured can identify an insured peril as the proximate cause of the loss, even if subsequent or concurrent events are specifically excluded from coverage. Arizona, however, has not adopted the "efficient proximate cause" rule. Therefore, the court precluded coverage, notwithstanding that the policy at issue, which contained a mold exclusion at item 6 c., provided, "However, we do cover any resulting loss to property described in Coverage A – Dwelling and Dwelling Extension from items 2 through 8 above, not excluded or excepted in this policy." Cooper at 962 (italics added). The Cooper court held that the "resulting loss" provision does not reinsert coverage for excluded losses, but reaffirms coverage for secondary losses ultimately caused by excluded perils. "We interpret the ensuing loss provision to apply to the situation where there is a ‘peril,’ that is, a hazard or occurrence which causes a loss or injury, separate and independent but resulting from the original excluded peril, and this new peril is not an excluded one, from which loss ensues." Cooper at 964 (citation omitted).39

Compare Cooper with Bowers v. Farmers Insurance Exchange, 991 P. 2d 734 (Wash. App. 2000). In Bowers, the insured sought coverage under a Landlord’s Protection policy for mold damage to her home that resulted when her tenants converted her home into a marijuana-growing operation. The nature of the operation required that all heat in the house be diverted to the basement. This, and other related aspects of the operation, caused mold to grow throughout the house. Bowers at 736.

The policy at issue provided coverage for vandalism and malicious mischief, but excluded coverage for mold. The insurer paid for warped wall paneling, but denied the claim for mold-related damage. The insured argued that the "efficient proximate cause" of her loss was not the mold, but the vandalism of her tenants. The court agreed with the insured, holding that when the insured can identify an insured peril as the proximate cause, there is coverage, even if subsequent events in the causal chain are specifically excluded from coverage. The Bowers court concluded that, "It was the tenants’ acts, which ‘in an unbroken sequence … [produced] the result for which recovery is sought[.]’" Bowers at 738.

While the "covered peril" issue can sometimes be a complex legal aspect of mold claims, the coverage picture is subject to even further complexity by certain factual aspects of the claims. The American Insurance Association (AIA), testifying recently before the Florida Department of Insurance at a hearing to address an appropriate regulatory response to mold and its effects on the insurance industry, described the following problems associated with mold claims in some cases:

  • Mold grows quickly, but the most likely places for growth are in locations not easily or normally accessible, so it may not be found for some time;
  • Once mold is discovered, it is often difficult to fairly ascertain whether remediation measures are covered under a typical insurance policy – in many if not most instances, determination of causation is at best uncertain;
  • Given the lack of standards, insurers are not certain when remediation is necessary and, even when necessary, how it should be done;
  • It is not at all uncommon to have mold occur as a result of faulty repairs done at the direction of the property owner (which ostensibly would not be covered under a typical property insurance policy); and,
  • Property insurance policies require an owner to mitigate damages – yet application of this requirement is problematic given the difficulty in discovering the problem itself.40

As these potential scenarios make clear, water damage/mold claims are extremely fact intensive and anything but black and white. Furthermore, the standards that govern whether an insurer has acted in bad faith in handling a claim are also less than crystal clear. Since Texas seems to get the most attention when it comes to mold, consider what it takes for an insured to establish bad faith in the Lone Star state.41 An insurer breaches its duty of good faith and fair dealing when it fails to settle a claim if it knew or should have known that it was reasonably clear that the claim was covered. The Universe Life Insurance Company v. Giles, 950 S.W. 2d 48 (Tex. 1997).42

Given that the fact intensive nature of water damage/mold claims may make their determination anything but "reasonably clear", as dictated by the bad faith standard, along with science that is up for grabs, the lack of permissible mold exposure standards, a jittery public and lawyers eager to fan the flames, it is easy to see why the deck is stacked against insurers handling such claims. And don’t forget that while homeowners’ policies do not provide coverage for bodily injury to the residents of the home, such coverage may become available in the form of damages for bad faith.

There is no better description of the cause of the frenzy over mold bad faith claims in Texas (and, no doubt, other states) than that provided by Justice Hecht in his dissenting opinion in State Farm Lloyds v. Nicolau, 951 S.W. 2d 444 (Tex. 1997). In a dissent joined by three other justices (although only two joined in the following quote), Justice Hecht aptly summarized the mold – bad faith situation as follows (that he did so about 3 years before mold’s emergence in earnest on the litigation scene only make his dissenting opinion that much more impressive):

The Texas tort of bad faith is — to borrow Judge Alex Kozinski’s observation in a related context – ‘so nebulous in outline and so unpredictable in application that it more resembles a brick thrown from a third story window than a rule of law.’ Oki America, Inc. v. Microtech International, Inc., 872 F. 2d 312, 315 (9 th Cir. 1989) (Kozinski, J., concurring)…The only flaw in Judge Kozinski’s metaphor is the implication that bad faith liability is limited to hapless passersby. A more accurate comparison would be to an assault weapon fired into a crowd at random.

That, needless to say, is the defendants’ perspective. For plaintiffs, bad faith is more like Hollywood television’s Wheel of Fortune, or closer to home, like the Texas lottery: it costs almost nothing to play, you can play whenever you want, and if you win you hit the jackpot - tens, maybe hundreds, of thousands of dollars for the awful mental anguish that invariably seems to accompany denial of even the smallest insurance claim, and millions in punitive damages. And like the lottery, bad faith liability is paid ultimately by the public. Insurance companies have not been authorized to print their own currency; the money to pay successful plaintiffs and their attorneys comes from policyholders, and they obtain the money to pay premiums from wages or sales. In effect, bad faith is a levy on everyone to benefit a few - what some have called a tort tax.

But whether bad faith is seen from the recovery end or the liability end, its principal feature is the same: it is chancy, far more so than any rule of law ought to be. A legal cause of action should not be a game of roulette, either casino-style or the Russian variety. Individuals and entities, even insurance companies, are entitled to know before they act what the law expects of them, what behavior is culpable and what is not. A legal cause of action must be adequately defined by principles and standards. The bad faith tort for first-party insurance relationships in Texas does not approach minimum requirements.

This is not a small problem. Every lawsuit in Texas by an insured against an insurer almost always includes an allegation of bad faith — at least every one filed by a competent lawyer. Why? Is it because the insurers who venture to do business in this State are a uniformly sorry lot? No; it is because the odds of recovery are always decent and the stakes - unlimited tort liability - are always high. The threat of liability also increases the settlement value of any policy claim and may make settlement less likely. Why is the threat viable in every case filed? Because this Court will not define the limits of the tort.

Nicolau at 453-454.

Clearly, water damage is a breeding ground not only for mold, but the threat of bad faith claims as well. And a threat is really all that they need to be for the plaintiff ’s attorney to have tremendous settlement leverage over the insurer. After all, what adjuster wants to take their chances with a jury when it comes to something as fact intensive and subjective as bad faith, and risk having a Ballard-like verdict on their resume.43

Considering all this, is there any wonder why State Farm, the nation’s largest home insurer has eliminated coverage for mold in 33 states, even if it is the result of storm damage covered by the policy. And way Allstate, the nation’s second largest home insurer, has added language to its policy to clarify that it doesn’t cover "mold, fungus, wet rot, dry rot or bacteria", unless the problems arise from events already covered by the policy. And in such cases, clean-up costs are limited to $5,000. 44 Insurers have taken heat for reacting to the explosion in mold claims by quickly seeking to preclude or limit coverage. But given the litigation environment in which they must operate - where, by their nature, virtually every mold claim, no matter how it is handled, can potentially satisfy a nebulous bad faith standard – such criticism is unjustified.

CONCLUSION

The present mold climate is reminiscent of the stock market in the late 1990s, when the shares of technology and internet companies, despite their lack of present earnings, and none in sight, went through the roof. What enabled this situation to happen was Wall Street’s temporary abandonment of its time-honored basis for measuring a stock’s worth – earnings. But once the Street went back to valuing technology and internet companies in this traditional manner, the air in the shares came out very quickly and only those companies with substance were left standing. Likewise, the uncertain science and the lack of standards for permissible exposure levels to indoor molds have enabled an environment of "irrational exuberance" over it to exist. However, the clarification of such issues will likely have the same effect as Wall Street’s return to sanity and an objective standard for stock valuation. Once there exist permissible exposure levels to mold, it is likely that only those claims that are legitimate will survive.

ENDNOTES

1 "Mold Data – All Claims," Texas Department of Insurance, June 14, 2002, available at http://www.tdi.state.tx.us/commish/molddata2.html. The Texas Department of Insur ance recently granted permission to certain insurers to offer their national homeowners’ policy form in Texas, in lieu of the more generous Texas standard HO-B form. For an in-depth look at how these forms differ in the water damage context, at least in State Farm’s case, see "Texas Department of Insurance Exempt Filing Notification Pursuant to the Insurance Code Chapter 5, Subchapter L, Article 5.96," available at http://www.tdi.state.tx.us/commish/statefarm.html.

2 Robert P. Hartwig, Ph.D., "Mold and the Insurance Industry: Truth and Consequences," Presentation at the American Insurance Association Emerging Trends Conference, McLean, Virginia, May 20, 2002, available at http://iiisrv.thing.net/yy_obj_data/binary/ 580641_1_0/mold.pdf.

3 State Farm Lloyds v. Nicolau, 951 S.W. 2d 444 (Tex. 1997), discussed infra.

4 Many articles that have been written about the potential financial impact of mold litigation refer to it as the "next asbestos". For an examination of whether mold is worthy of such an ambitious label, see Randy J. Maniloff, "Mold: 5 Reasons Why It Is Not the ‘Next Asbestos’," Mealey’s Litigation Report: Insurance, Vol. 16, Iss. 25 (5/7/02) at p. 25, available at http://www.cpmy.com/articles/In1625cm.pdf.

5 See Dan Michalski, "Mold Can Be an Insurance Mess for Homeowners," The New York Times, June 16, 2002, at BU 9 (noting that insurers in Texas paid $1.2 billion for mold claims in 2001 alone) and Rochelle Sharpe, "Mold getting a costly hold on homes," USA Today, June 20, 2002, at 15A.

6 The Ballard jury awarded damages as follows: (i) cost to replace the home - $2,547,350; (ii) cost to remediate the home - $1,154,175; (iii) cost to replace the contents of the home - $2,000,000; (iv) cost of past and future additional living expenses - $350,000; (v) cost of the appraisal process - $176,000; (vi) damages for improper claims handling - $12,000,000, plus $5,000,000 for mental anguish; and (vii) attorney’s fees - $8,891,000. When the term "bad faith" is used herein to describe the Ballard verdict, it is being used in a generic sense, given that the Ballard complaint set out several causes of action, including violations of the Texas Deceptive Trade Practices and Consumer Protection Act and the Texas Insurance Code.

7 Ms. Ballard has since founded an organization called Policyholders of America, which describes itself as a take charge organization that helps policyholders get the coverage they have paid for and deserve. Her website states, "We don’t whine. We get results. In the process, we make insurance companies madder than hell. We don’t care." http://www.policyholdersofamerica.org/index2.html.

8 The New York Times Magazine article does not specifically say that the woman on the cover wearing the bio-hazard suit is Melinda Ballard. The woman’s face, while partially obscured by the suit’s head piece, resembles the picture of the woman in the article that is clearly identified as being Ms. Ballard. The table of contents provides the following note on the subject, "On the cover: When mold invaded Melinda Ballard’s dream house in Dripping Springs, Tex., it went from modern-day Tara to biohazard."

9 Mary Melinda Ballard and Ronald Allison v. Fire Insurance Exchange, et al., In the District Court of Travis County, Texas, 345th Judicial District, Order Granting Defendant’s Motion to Exclude Causation Opinions, Dietz, J., May 9, 2001.

10 While the absence of an award for bodily injury means that the Ballard verdict could have been even higher, the lack of reporting on this aspect of the case, when the public’s concerns over mold are likely much more related to the risks of bodily injury than property damage, is troubling.

11 Judge Dietz hand wrote the following case citations on his order precluding the medical experts from testifying in Ballard: E.I. du Pont Nemours & Co. v. Robinson, 923 S.W. 2d 549 (Tex. 1995); Gammill v. Jack Williams Chevrolet, 972 S.W. 2d 713 (Tex. 1998); Merrell Dow v. Havner, 953 S.W. 2d 706 (Tex. 1997); Helena Chemical Co. v. Wilkins, 2001 Tex. Lexis 38 [now reported at 47 S.W. 3d 486 (Tex. 2001)].

12 Mary Melinda Ballard and Ronald Allison v. Fire Insurance Exchange, et al., In the District Court of Travis County, Texas, 345th Judicial District, Defendant’s Motion to Exclude Causation Opinions and Brief in Support at 8, 23.

13 And it is not just the mainstream media that is at fault for imprecise reporting on the Ballard verdict. Consider the inaccurate description of the verdict that appeared in an article published by The Cima Companies, who describe themselves as one of the largest property/casualty and employee benefits brokers in the United States. "Despite the lack of science, plaintiffs have been very successful. The big jackpot so far has been a $32 million award in Texas, against an insurer. The jury found that the insurer did not adjust a water-damage claim properly, allowing a mold infestation and resulting respiratory illness and memory loss to occur. Plaintiff Melinda Ballard survived, and founded the activist group called Policyholders of America." "The Mold Buffet," The Cima Letter, Summer 2002, available at http://www.cimaworld.com/cimaletter.

14 Dr. John Tedesco v. Paul Revere Life Insurance Company, No. 99-CV-2552, M.D. Fla. Reported in Mealey’s Litigation Report: Insurance Bad Faith, Vol. 15, Iss. 4 (6/13/01) at p.4.

15 Charles Kocher v. Oxford Life Insurance Co., No. 00-C51-K, W. Va. Cir., Wetzel Co. Reported in Mealey’s Litigation Report: Insurance Bad Faith, Vol. 15, Iss. 24 (4/17/02) at p. 3.

16 These searches were undertaken on Google.com on September 4, 2002. Of course there is nothing scientific about these results, but they still provide useful anecdotal evidence of the degree of media buzz surrounding different stories.

17 http://www.usaweekend.com/about/index.html.

18 The USA Weekend article stated that molds "are primary suspects in the tripling asthma rate over the past 20 years." Dr. Redd of the CDC, in his July 18, 2002 testimony before Congressional subcommittees stated that a 2000 report from the Institute of Medicine concluded that while there is sufficient evidence of an association between exposure to mold and exacerbation of asthma, there was inadequate evidence that molds cause people to become asthmatic.

19 Center for Disease Control, "Questions and Answers on Stachybotrys chartarum and other molds," available at www.cdc.gov/nceh/airpollution/mold/stachy.htm.

20 The "eggshell plaintiff" rule provides that tortfeasors must take their plaintiffs as they find them and may not escape or reduce damages by highlighting the injured party’s susceptibility to injury. See Primm v. United States Fidelity & Guaranty Assurance Corp., 922 S. W. 2d 319 (Ark. 1996).

21 Mary Melinda Ballard and Ronald Allison v. Fire Insurance Exchange, et al., In the District Court of Travis County, Texas, 345th Judicial District, Defendant’s Motion to Exclude Causation Opinions and Brief in Support at 12.

22 Ed McMahon, et al. v. American Equity Insurance Co., et al., No. BC271423, Calif. Super., Los Angeles County.

23 Anastasia Hendrix, "Erin Brockovich Crusades Against Mold, State lawmakers told of potential health dangers," San Francisco Chronicle, March 8, 2001.

24 Christina Littlefield, "Life mirrors art: Brockovich says don’t shy away from challenges," Las Vegas Sun, June 27, 2002.

25 According to the website www.moldupdate.com, as of August 6, 2002, the following states have introduced legislation in some way connected to mold or indoor air quality: Arizona, California, Connecticut, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York and Pennsylvania. Such legislation has either been enacted, defeated or is currently in-progress.

26 The task force is to be comprised of representatives of public health officers, environmental health officers, code enforcement officers, experts on the health effects of mold, medical experts, certified industrial hygienists, mold abatement experts, representatives of government-sponsored enterprises, representatives from school districts or county offices of education, representatives of employees and representatives of employers, and affected consumers, which include, but are not limited to, residential, commercial and industrial tenants, homeowners, environment groups, and attorneys, and affected industries, which include, but are not limited to, residential, commercial and industrial building proprietors, managers or landlords, builders, realtors, suppliers of building materials and suppliers of furnishings, and insurers. Considering that insurers likely have the most at stake financially for the risks of mold, it is ironic that they are last on the list of stakeholders in the California Act.

27 In adopting such limits, the Department is to consider, among other criteria, the adverse health effects of exposure to molds on the general population, including specific effects on members of subgroups that comprise a meaningful portion of the general population, which may include infants, children age 6 years and under, pregnant women, the elderly, asthmatics, allergic individuals, immune compromised individuals, or other subgroups that are identifiable as being at greater risk of adverse health effects than the general population when exposed to molds.

28 SB 732 (Toxic Mold Protection Act of 2001), Implementation Update, August 6, 2002, available at http://www.caliaq.org/SB732update.htm.

29 "Conyers Convenes Citizens Meeting on Toxic Mold," Press Release From the Office of Congressman John Conyers, Jr., #107-178, undated (but issued to announce a meeting to be held on June 3, 2002).

30 "Congressman John Conyers, Jr. Introduces H.R. 5040: The United States Toxic Mold Safety and Protection Act ("the Melina Bill")," available at
http://www.house.gov/conyers/mold/htm.

31 John R. Hall, "IAQ Testing, Mold Remediation Could Offer Profits," May 23, 2002, available at
http://www.achrnews.com/CDA/ArticleInformation/features/BNP__Features__Item/0,1338,77835,00.html.

32 Id.

33 Linda Goodspeed, "‘Hysteria’ over mold growth is boon to air-quality firms," Boston Business Journal, August 16, 2002.

34 "NAII Urges Caution on Federal Legislative Move to Address Mold," July 9, 2002, http://www.insurancejournal.com/html/ijweb/breakingnews/national/na0702/ na0709021.htm; "IIABA Cites Problems with Conyers Mold Bill," July 12, 2002, http://www.insurancejournal.com/html/ijweb/breakingnews/national/na0702/ na0712021.htm.

35 http://www.policyholdersofamerica.org/index2.html.

36 http://www.policyholdersofamerica.org/message_to_insurers.html.

37 Texas Department of Insurance, "Commissioner Montemayor Statement to Residential Property Insurers," September 18, 2001, available at www.tdi.state.tx.us/commish/moldinsurer.html.

38 There are no shortage of articles that provide in-depth discussions of the various coverage issues surrounding mold. Two excellent ones are Bill Wilson, "Toxic Mold Claims," available at http://vu.iiaa.net/Lib/Ins/PL/Homeowners/WilsonToxicMold.htm and "Mold – An Overview," FC&S Bulletins, Personal Lines Volume, May 2002, available at www.insurance-portal.com/051502fcsmold.pdf.

39 Cooper rejected the insured’s argument that mycotoxins released by mold spores are a separate and independent loss resulting from mold. [I]f after removal of the mold, the mycotoxins continued to exist separate and apart from the mold, then the mycotoxins would be an independent and distinct ensuing loss. However, Intervener’s own EPA official publication states that the toxins are produced and released by the mold; therefore, removal of the mold would presumably also remove the mycotoxins. As such, the mycotoxins do not constitute a separate and independent loss resulting from mold. Here, there is no separate and independent peril. The claimed damage is mold. The proposed remediation is removal of the mold. Calling it a pollutant does not change the result. It is still mold. The policy expressly excludes any losses that are caused by and result from mold. The ‘resulting loss’ clause does not resurrect the excluded peril to provide coverage. Cooper at 965.

40 "Groups Urge Regulatory Constraint at Fla. Mold Hearing," August 21, 2002, http:/ /www.insurancejournal.com/html/ijweb/breakingnews/regional/southeast/se0802/se0821021.htm

41 Bad faith case law varies considerably from state to state, with statutes and regulations sometimes being an additional component of the equation. The discussion of bad faith contained herein is merely the tip of the iceberg.

42 While the Texas bad faith standard is that simple, various cases have provided additional guidance on the issue. A recent Court of Appeals of Texas decision succinctly summarized some of these guidelines as follows: "[A]n insurer does not breach its duty by delaying payment when there is a bona fide controversy as to liability. As long as the insurer has a reasonable basis to deny or delay payment of a claim, even if that basis is eventually determined by the fact finder to be erroneous, the insurer is not liable for the tort of bad faith. The key inquiry in a bad faith claim is the reasonableness of the insurer’s conduct. Reasonableness is determined using an objective standard of whether a reasonable insurer under similar circumstances would have delayed or denied the claimant’s benefits." Johnson v. Essex Insurance Company, 2002 Tex. App. LEXIS 588 (citations omitted).

43 For an example of a recent Texas bad faith decision involving mold, see Maynard v. State Farm Lloyds, 2002 U.S. Dist. LEXIS 12026. While the insurer prevailed in Maynard, it is easy to see how fact-intensive and subjective this coverage litigation is, not to mention expensive. These are three factors that are likely to drive many insurers to the settlement table, no matter how strongly they believe in the merits of their cases.

44 Christopher Oster,"Insurance Companies Just Say ‘No ’ to Covering Mold,"The Wall Street Journal ,August 8,2002,at D1.