[ql06] TORT: Ed McMahon's $7.2m dog

That previous WSJ story about Ed McMahon's dog being worth $7.2m in tort
damages sounded so outlandish, I wanted to find the case.

After all, the WSJ (editorially at least) would easily fall in with that
business-political group that wants to limit what lawyers can get their
clients on tort. It's NOT beyond an editorial board (as distinct from a
news reporter) to do creative "urban legend"-making.

Sure enough, he didn't get $7.2m for the dog. The case was settled out
of court for $7.2m. (Which is probably why I couldn't find the ruling in
California Superior Court database.)

Also: The dog was not the law suit. The dog was brought up in the case
as a piece of evidence -- being like a "canary in a coal mine," a first
indicator. The dog dies, then wife gets sick, etc. (I include the second
LA Times article in full below because it details the extent of the
complaint -- which appears to claim the insurance company had taken
possession of all the family's personal property.)

Furthermore, the suit is really part of a larger, local controversy in
California about "toxic mold syndrome." McMahon wasn't the only one.
Governor Grey Davis was in the fray (signs the 2001 Toxic Mold
Disclosure Act). (For a thrilling read about mold and insurance
coverage, see www.cavignac.com/pdfs/Cml0603.pdf.)

By trying to reduce it to a "dog lawsuit" and tacking the words "tort
award $7.2m" -- that is a partisan, editorial attempt to hurt "Tort
Warriors."

WSJ was just reporting on (though gladly accepting) what they were told
by "The Manhattan Institute." The MI is a conservative "think tank" in
NYC. It probably gets funding from the very business lobby group that
wants to curb tort awards.

MI prez Larry Mone sat on a May 29 panel with Edward H. Crane III (Cato
Institute), Christopher DeMuth (American Enterprise Institute), and
Edwin J. Feulner Jr. (Heritage Foundation). That is one heavy-duty
line-up for far right big business-fueled institutions.

Ken.

--
Tolerance means to have the questions.
Fanaticism means to have the answers.
          -- Elie Wiesel



--- cut here ---

Los Angeles Times: May 9, 2003.  pg. B.1

Ed McMahon Settles Suit Over Mold for $7.2 Million
Jean Guccione.

Abstract (Article Summary)

Ed McMahon and his wife, Pamela, sued American Equity Insurance Co. in
April 2002 for breach of contract, negligence and intentional infliction
of emotional distress. The couple and members of their household staff
were sickened by toxic mold that spread through their six-bedroom,
Mediterranean-style house after contractors failed to properly clean up
water damage from a broken pipe, their lawsuit alleged.

The pipe broke in ...


--- cut here ---


Ed McMahon Sues Over Mold in House
Courts: Entertainer seeks $20 million from insurer, alleging he was
sickened by substance after botched repair.

By ANN O'NEILL
Los Angeles Times
April 10, 2002


Entertainer Ed McMahon is suing his insurance company for more than $20
million, alleging that he was sickened by toxic mold that spread through
his Beverly Hills house after contractors cleaning up water damage from
a broken pipe botched the job.

McMahon and his wife, Pamela, became ill from the mold, as did members
of their household staff, according to the Los Angeles County Superior
Court suit. The McMahons also blame the mold for the death of the family
dog, Muffin.

Their suit, the latest of many in recent years over toxic mold, was
filed late Monday against American Equity Insurance Co., a pair of
insurance adjusters and several environmental cleanup contractors. It
seeks monetary damages for alleged breach of contract, negligence and
intentional infliction of emotional distress. A spokeswoman for the
insurance company declined to comment.

The trouble began in late July, when a pipe broke in the couple's
six-bedroom Mediterranean-style house, which was filled with memorabilia
from Ed McMahon's long television career. The den was flooded. A month
later, mold was discovered in the den.

The McMahons charge in court papers that they were assured they were
safe and could remain in the house during the cleanup, even as the mold
spread through the heating and air conditioning ducts to their bedroom.
It invaded the closets, contaminating their clothes. It also was found
under the Jacuzzi in the master bathroom.

The McMahons questioned the contractors' cleanup methods, including
simply painting over the mold. As the job became more expensive and
complex, the insurance company and its contractors abandoned it, the
suit charges.

"They covered it until they realized how expensive it was, and then they
covered up," said McMahon lawyer Allan Browne. "What they did was spread
the mold by allowing it to go into the air conditioning and heating
ducts. When they screwed up, they started saying, 'Maybe we're not
responsible for this job.'"

"When your family loses its health and your home is a wasteland, that's
a colossal disaster," McMahon said Tuesday.

The McMahons' 8,000-square-foot house overlooking Coldwater Canyon
stands gutted as the entertainer, his insurance company and the
environmental cleanup contractors argue over who should pay to finish
the cleanup, according to court papers. The McMahons are renting a
$23,000-a-month house and, Browne said, have no idea where their
insurance company has stored their clothing, furniture, artwork and
memorabilia.

"Hopefully, it's safe, but we don't know where it is," Browne said.

Awareness of toxic mold has increased in recent years because of a spate
of lawsuits. Among the most prominent litigants is Erin Brockovich, who
discovered mold in the house she bought when the story of her legal
crusade on behalf of pollution victims was turned into a movie starring
Julia Roberts.

In response to the increased litigation, insurance rates have spiked in
some states. Insurers in some areas have stopped writing policies or
offer only bare-bones ones that don't cover mold problems.

In June, for example, Farmers Insurance Group lost a $32-million lawsuit
filed by a Texas family that claimed toxic mold in their home caused
severe health problems. The jury found that the insurer failed to pay
for needed repairs for a water leak, which allowed mold to grow rampant
in the house, making it uninhabitable.

In California, Gov. Gray Davis signed the 2001 Toxic Mold Disclosure
Act, which went into effect in January. The law requires anyone selling,
leasing or transferring property to disclose any potentially dangerous
mold problem.

"The mold that grew in this case was the poisonous variety, stachybotrys
chartarum," Browne said. "This is the most dangerous mold of all. It can
cause death in people who are susceptible to respiratory ailments."

The McMahons' dog, a mutt who resembled a sheep dog, was in perfect
health until she suddenly became sick at about the same time the mold
was discovered, Browne said. "She was a sweetheart of a dog, incredibly
smart, as frisky as you can imagine," the lawyer said. "All of a sudden
she got this terrible respiratory ailment, and they had to put her
down," Browne said.

And then, McMahon's and his wife's health began to suffer.

McMahon, best known as the affable sidekick to talk show host Johnny
Carson, spent most of the fall coughing, sneezing and congested. "Nobody
could figure out why he was unable to breathe," Browne said. He spent
four months on antibiotics and had to cancel several speaking
engagements. Finally, his doctor ordered him out of the house and his
health improved.


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