Avoiding Litigation: A House-Eating Fungus
By Keith Swift, PhD
InterNACHI member/InterNACHI Report Writing Consultant
President, Porter Valley Software
Industry standards and most inspection contracts commonly disclaim an inspection for termites, dry rot, mold or fungi, wood destroying organisms, and pests and rodents, which are generally considered to be the responsibility of termite inspectors and other specialists. However, fearing lawsuits, many inspectors now document such damage in their reports, including damage by pests and rodents. Regardless, rats, mice, and even common household pets, can cause considerable damage to components that inspectors are responsible for evaluating, and which could have an adverse affect on the health of the occupants. For instance, inspectors frequently find supply ducts that have been contaminated by animal waste and some that are actually inhabited by vermin. However, they should decide in advance what they are willing to accept responsibility for and what risks they are willing to assume. They are completely within their rights to disclaim something, but it should be clearly documented within a contract or service description, and I even favor restating a disclaimer within the body of the report. However, they should never allow industry standards to give them a false sense of security. For example, standards typically disclaim the testing of automatic or remotely controlled driveway gates, but if a child’s foot or fingers happened to get caught in a pinch-point on a gate, an inspector is likely to be sued, and not sued for breach of contract but for negligence. Would that be fair if the inspector had disclaimed an inspection of automatic gates? Of course not, but let’s consider one particular litigious fungus that has not been shown to have any affect on health, but which can destroy cellulose materials in a few short weeks. Its name is Poria Incrassata, but it has also come to be known as the house-eating cancer.
Before talking about Poria Incrassata, let me first acknowledge that the best articles that I’ve read about molds in general and their effects on health and the environment are by Dr. Ronald E. Gots, and they are really worth reading. However, I became particularly interested in Poria Incrassata when I learned about, and then witnessed, its awesome power. Because it is dependant on moisture from the soil, you are not likely to see it within the living space, although it could become evident as dust-like spores, dark stains, or shrunken wood, but you can be sure that there would be considerably more evidence of it concealed elsewhere. For instance, you might discover mushroom-like fruiting bodies or delicate fan-like fronds that are called Rhizomorphs spreading over the soil and on surfaces that could well be in the advanced stages of decay and structural failure.
One of the worst cases of Poria Incrassata that I learned about began innocently enough. Escrow had closed on an expensive two-story house, and a painter was finishing the inside of a kitchen cabinet when his brush broke through the surface of a wall. After further probing, it was decided that the cabinets and the countertop would have to be removed to expose a greater area. The new owners were opposed to this at first, but then agreed. But, it didn’t end there. Eventually, the entire wall had to be opened up, and revealed dank cavities and the remains of studs that looked like mummified skin, but which were all that remained supporting some of the second story floor joists. This explained why two bedroom floors were sloping, which no one had questioned before. But, to jump to the end of the story, the owners never did move into their dream home, and a lawsuit ensued with claims that far exceeded the purchase price of the house. Would a first-rate inspector have discovered this? It is possible, because the sloping bedroom floors were certainly symptomatic of movement that should have been recommended for evaluation by a specialist.
My clients, who were expecting their first baby, were quite naturally concerned about their health and that of their unborn child, but I assured them that to the best of my knowledge Poria Incrassata was not a health-hazard, and gave them the name of a specialist who had educated me about Poria years earlier. They were relieved and thanked me, and I left feeling like a Good Samaritan. A few weeks later, they sued me, the sellers, the termite inspector, both real estate agents, and a host of others for all I know. Their attorney failed to get my name right, misrepresented me as the owner of a termite inspection company, and related a long and overstated account of the pain and suffering and emotional distress that my alleged negligence had caused. Significantly, it failed to mention one indisputable truth, which was that I was the first person to come to their aid, and had made the appropriate recommendation for a specialist evaluation. Of course, their attorney had to have asked them how they became aware of the Poria in the first place, and yet this materially significant fact was conveniently forgotten.
