Homeowner Gets Nothing in Mold Verdict

BY ROBERT P. MADER of CONTRACTOR’s staff

RIVERSIDE, CALIF. — A Riverside County jury returned a defense verdict in favor of a home builder in a closely watched case involving claims of bodily injury from exposure to mold in a single-family home in Menifee, Calif. Jury deliberations took less than 25 minutes, according to trial lawyers Victoria Ersoff and Gregory Amundson with the law firm of Wood, Smith, Henning & Berman, which represented the defendant developer and builder.

As a result, the suing homeowner gets nothing and will have to pay the defendants’ attorneys’ fees and costs.

Ersoff told CONTRACTOR that juries seem to be less susceptible to plaintiffs’ arguments that mold caused illness and injury. Plaintiffs tend to win more lawsuits in bench trials, she said, or in landlord/tenant cases where the landlord ignored complaints about leaks.

Jurors during the 12-day trial of Bonnici v. Forecast, et al. (Riverside Superior Court case No. RIC361721) heard testimony from a family of four that complained of various bodily injuries allegedly stemming from exposure to mold in their tract home. Plaintiffs claimed injuries included epileptic seizures, tumor growth, endometriosis, depression, migraine headaches, Meniere’s disease, gastrointestinal disorders, rhinitis and sinusitis, together with a host of allergic symptoms.

Blaming the mold growth on water intrusion resulting from a failed pipe buried in the slab, in addition to chimney cap, window and roof leaks, the family of four relocated from the home during which time it went through extensive remediation and remodeling.

The 34-in. copper hot water pipe ran from a water heater in the garage along the slab and took a 90° turn into the house, where it supplied the clothes washer and kitchen and bath in the 1,500-sq.-ft. house. The pinhole leak occurred in the 90°, which was a bend in the pipe, not a soldered elbow.

The house was built in 1989, but the leak was not detected until 2001, an important fact in getting the builder off the hook for a construction defect.

Forecast Homes, the defendant builder, successfully argued that the plumbing, chimney, window and roof leaks were unrelated to the original construction of the home. Although the jury found that there were some construction issues in the house, it decided that they were not the cause of plaintiffs’ injuries and damages.

The trial judge bifurcated the trial, separating Forecast Homes’ cross complaint against its concrete, framing and roofing subcontractors. Forecast is making claims against its insurance to try to offset some of its expenses in the trial.

Ersoff noted that the plaintiffs had only a general contractor testify, not the leak-detection company or a plumbing contractor. The plaintiffs first tried to claim that a framing nail had penetrated the pipe during construction, but that was shown to be untrue. The plaintiffs’ attorney then tried to make the case a product defect case but did not call a metallurgist to testify.

And despite the presence of mold, the builder’s attorneys were able to break the link between the mold and the plaintiffs’ illnesses. The defense was able to establish by both treating physicians and testifying experts that excessive use of prescription drugs by one of the plaintiffs could cause all the symptoms.

Settlement demands dropped

Plaintiffs’ settlement demands decreased with the passage of time, dropping eventually from $250,000 to $80,000 during trial. The nuisance cause of action was dismissed prior to the trial by the court, as well as the claims of the two minor children for inconvenience, loss of use and enjoyment of their property.

Prior to trial, Forecast Homes made a statutory offer to compromise, which was rejected by the plaintiffs. In closing arguments, the plaintiffs’ attorney asked the jury to award plaintiffs $295,000 in damages. By virtue of the defense verdict, the builder is entitled to recover from plaintiffs its court costs and expert witness fees.

The defendant will attach the plaintiffs’ house, attorney Amundson said. He estimated the builder’s attorneys’ fees and expert witness costs would be more than $50,000.

“They have a lot of equity,” he said of the plaintiffs. “They’ve been there since 1990 and have never refinanced.”

In terms of a national scorecard on mold bodily injury trials, this case is believed to be the 30th such case nationally to proceed to trial and verdict. Of this number, 17 have been defense verdicts. Only two lawsuits against builders have proceeded to trial and verdict, and builders won both.