Zalma: Mold Isn’t Gold

Coverage lawyer Barry Zalma has written a good article entitled "Mold Isn’t Gold" about a recent Texas Supreme Court case that held that the mold exclusion in a homeowners policy means what it says: mold isn’t covered.  The case is Fiess v. State Farm Lloyds, and here is a link to a pdf of the decision.  Barry gives some useful perspective on the history of this issue and what this case means for ongoing mold cases.

I saw this case when it came out on August 31, 2006, and after reading Barry’s article, I went back and read it again.  The first three paragraphs of Fiess are such a striking example of good legal writing that I am going to reprint them below:

The question in this case is not whether insurers should provide mold coverage in Texas, a public policy question beyond our jurisdiction as a court.  The question instead is whether the language in an insurance policy provides such coverage — no more and no less.

The rules for construing insurance policies have been around for a long time, long before this dispute arose. Those rules require us to construe a policy according to what it says, not what regulators or individual insurers thought it said. Ambiguities in the plain language must be settled in favor of consumers, but they must appear in the policy itself —  we cannot create ambiguities from previous policies, an agency’s interpretation, or a “mold crisis.”

The policy here provides that it does not cover "loss caused by mold." While other parts of the policy sometimes make it difficult to decipher, we cannot hold that mold damage is covered when the policy expressly says that it is not.  Accordingly, we answer the Fifth Circuit’s certified question "No."

This is just good, plain English, not weighted down with pretense or pomposity, and not ruled by the dead hand of Latin, or by 17th century style and sentence structure.  It’s a great introduction: three paragraphs and tells you everything you need to know.

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