Four Facts about Home Builders Sued Over Mold
It is an exciting time in a family’s life when they move into a newly constructed home. Unfortunately, when mold enters the home due to faulty construction or faulty product manufacture, the dream can turn into a litigation nightmare for all concerned. There are things about home builders sued over mold that might just surprise you. Four things, in fact.
1. Protracted Litigation
There aren’t very many attorneys with the training and knowledge to conduct this type of litigation. Proving injury from mold is difficult even for the most experienced of mold case litigators. Even so, there are an increasing number of toxic mold cases brought each year in a burgeoning toxic mold tort practice. You also should understand that mold litigation can take up to two years to resolve. Such litigation is known for the battle of the experts who each give opinions on the mold and whether the defects in design or workmanship caused the plaintiff’s injuries. These considerations can mean expensive legal bills for a defendant even if the case is won.
2. Water Intrusion
No matter what legal theory underlies toxic mold cases, litigation against builders and contractors usually results from water allowed to intrude and then pooling inside a building. The pooling gives mold the opportunity to grow on drywall, insulation, and other porous materials. Many construction or design flaws can cause water intrusion, such as improper drainage or leaky pipes between floors. This water intrusion can lead to costly repairs by the builder.
3. Breach of Contract, Breach of Warranty, Negligence
So far there are no federal regulations dealing with toxic mold. The few state rules are generally addressed in the landlord/tenant arena. Therefore, cases brought against builders and contractors generally fall under the auspices of one or more of the general law principles, as described below.
Generally, there are three legal theories under which a participant may bring mold claims. Under a breach of contract action, the plaintiff will argue that the builder/contractor designed and/or constructed the building in a manner that resulted in water build-up and toxic mold. Such work, the argument goes, is a breach of the work contract. The plaintiff generally sues for out-of-pocket damages and the lost value of the property.
Under a Breach of Warranty action, the plaintiff will argue that the construction was not done according to industry standards meant to satisfy an implied warranty that the completed building is fit for habitation when sold. Alternatively, a plaintiff may sue on the basis of a specific warranty made by the builder, designer, or construction company.
Most states also impose warranties on new construction that the work or construction will be free of defects (mostly for the first ten years). The damages in the case of a breach of warranty rest upon the difference in value of the building accepted by the plaintiff and what the value would have been without the builder/contractor’s breach (mold).
A case built on Negligence theory may provide the most value to the plaintiff (and prove the most costly to the builder/contractor) because the plaintiff can sue for “pain and suffering” damages in addition to actual damages. This is especially valuable in the context of medical injuries resulting from toxic mold. On the other hand, negligence claims are difficult to prove.
There are basically three elements to a successful negligence claim. The first is to prove a causal link between the injury the plaintiff sustained and the work done by the builder. Second, the plaintiff must prove that the builder/contractor owed a duty to the plaintiff to design/construct the building in such a way as to keep it free from mold. The third element for the plaintiff to prove is that the builder/contractor breached the duty of care to keep out mold. These elements are difficult to prove, especially the causal relationship between the work quality (including design features) and the growth of the mold.
One family in Kansas sued their home builder because of the growth of mold in their home. Amy and Jason Perrault moved in their new home in Wichita, Kansas in 2010. They soon noticed that rain came in around the windows and doors. Then, their 2-year old son became sick with respiratory issues that put him in hospital four times in one year. Their medical bills mounted.
Their son takes antibiotics constantly and the boy’s doctors have diagnosed that their house is the source of his illness. Trying to help their son, the family has incurred more than $200,000 of medical bills. Environmental investigators say the house needs around $50,000 in repairs to remove the mold.
After trying to contact the builder about the issues with no response, the Perrault’s filed suit in 2012 for damages in excess of $75,000 against the contractor, Clint Miller Homes, LLC as well as the sub-contractors, MI Windows and Doors. The lawsuit accuses the firms of faulty construction and/or faulty windows leading to the mold problem which has made the Perrault home uninhabitable during rain and snow. The lawsuit brings action against the companies in breach of contract, negligence, and private nuisance.
If you want to read more about toxic mold cases, read Coulter Boeschen’s article on Law.com entitled “Lawsuits for Toxic Mold Exposure in Your Home” which was the inspiration for this post.
4. Damage to the Builder’s Reputation
It takes years for a builder to create a reputation for building quality, trouble-free homes. That reputation can be severely damaged by a lawsuit or a homeowner who aggressively complains online.
In addition to windows, doors and flashing, the air and moisture barrier is also a frequent culprit with moisture intrusion that can lead to mold and a lawsuit. Using a high performance, fully adhered air and moisture barrier such as DELTA®-VENT SA can help alleviate this problem.
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