Strader v. Grange Mutual: Oregon High Court Refuses to Review Ruling That Insurer is Not Liable in Tort for Alleged Failure to Remediate Mold Problem
October, 2002
The Oregon Supreme Court has denied the insureds’ request for a review of an appellate decision holding that the defendant insurer is not liable for alleged failure to remediate mold contamination that caused personal injuries. Strader v. Grange Mutual Ins. Co., 39 P.3d 903 (Ore. App. 2002),1 reviewed denied, 47 P.3d 485 (Ore. 2002).
The Decision Below
Plaintiffs David and Kathy Strader purchased a home in September of 1995 and insured it under a homeowners policy issued by defendant. Three months later, a windstorm caused damage to plaintiffs’ roof, which resulted in water damage to the house and its contents. Plaintiffs’ insurer, Grange Mutual (“Grange”) repaired the damage temporarily; however, permanent repairs were not finished until a year after the storm, December 1996. Plaintiffs and Grange could not agree on the amount due under the policy. Subsequently, after the roof was permanently repaired and sealed, plaintiff Kathy Strader began to suffer from asthma which was aggravated by an allergy to mold spores. Plaintiff was advised by her doctor that she should reduce exposure to her own home. Plaintiffs informed Grange of the condition and exhibited certain areas of the house where mold was growing. Grange refused to pay plaintiffs the amount requested to rectify the damage, including mold remediation.
Plaintiffs filed suit alleging breach of contract and a separate tort claim that the insurer’s delays in repairing the roof caused plaintiff Kathy Strader personal injuries. The Oregon Court of Appeals affirmed the trial court’s dismissal of the personal injury claim, reasoning that in order to bring a tort claim based on conduct that is also a breach of a contract, plaintiff must allege that the defendant’s conduct violated a standard of care that is not a part of the defendant’s explicit or implied contractual obligations and that the independent standard of care “stems from a particular special relationship between the parties.” Plaintiffs failed to meet this burden.
Petition For Review Denied
The Straders petitioned the Oregon Supreme Court for review on April 2, 2002, arguing that Grange had a duty to mitigate and that their failure to do so contributed to the physically dangerous condition in the plaintiffs’ home. Plaintiffs further argued that the insurer’s conduct which created the dangerous condition was not only a breach of contract but an actionable tort in that Grange was notified of Kathy Strader’s condition and thus had a duty to remediate and not aggravate the unhealthy mold condition.
The Supreme Court of Oregon, however, refused to review the decision.•
1. Reported on in Volume 2 of the 2002 CM Report of Recent Decisions at p.26.
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