New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on September 8, 2003 representing the position of the New York State Insurance Department.

RE: Mold Exclusions in Property/Casualty Insurance Policies.

Question Presented:

Has there been any change in the Department’s position regarding mold exclusions in property/casualty insurance policies since the Department’s April 1, 2003 opinion?

Conclusion:

The Department is currently considering approving specific mold limitations for reasonable amounts. Each filing needs to be reviewed on a case-by-case basis.

Facts:

No specific facts were provided.

Analysis:

In an April 1, 2003, letter, I wrote:

Nothing in the Insurance Law or regulations thereunder specifically prohibit a mold exclusion in an insurance policy. However, in a policy issued by an authorized insurer written on risks or operations in this State, an exclusion that is misleading or violative of public policy is not permissible. The Superintendent has not approved any mold-related exclusions…[T]he Superintendent has stated that the Department will not approve any limitations or exclusions for mold-related coverages until it receives information sufficient to warrant such exclusions or limitations.

Subject to certain exceptions (such as for special risk insurance policies issued pursuant to Article 63 of the Insurance Law), all policy forms must be filed with, and approved by, the Superintendent, before they may be used. However, whether or not the policy form must be filed, the insurer is subject to the compliance and standards requirements of Article 23 and the Insurance Law, and regulations promulgated thereunder, including the requirement in N.Y. Ins. Law § 2307(b) (McKinney 2000) that a policy may not be misleading or violative of public policy.

The Department is currently considering approving specific mold limitations for reasonable amounts. Each filing needs to be reviewed on a case-by-case basis.

For further information you may contact Principal Attorney Paul A. Zuckerman at the New York City Office.