PUBLISHED IN MASSACHUSETTS LAWYER'S WEEKLY
MARCH 10, 2008
In June 2000, the plaintiffs hired the defendant home-insulation contractor to install insulation behind aluminum siding of their house. The plaintiffs alleged that the contractor failed to follow accepted procedure and industry standards for installation of blown-in insulation in residential homes with aluminum siding by negligently cutting the aluminum siding on all four sides of the home.
The plaintiffs further alleged that, after negligently cutting and slashing the aluminum siding, the contractor failed to properly refit or replace it after the installation due to the cuts that were made. The result was the failure of the aluminum siding to lock correctly, thus creating gaps and openings in the siding throughout all four sides of the house.
Complicating matters, the contractor had drilled 200 holes through the house's clapboard four inches deep into the interior wall to blow in the insulation. After the insulation work was completed, the contractor failed to cap or close the circular holes made on all four sides of the house.
As a consequence of the negligent workmanship, rain, water and moisture seeped behind the aluminum siding of the house, saturating and damaging the clapboard, insulation and interior walls through the numerous open holes. As a direct result of the persistent water seepage and penetration, wetness and moisture developed, causing the perfect environment for the growth and development of dangerous mold and mold species behind the aluminum siding and within the walls of the home.
Within a short period of time after the installation of the insulation, the plaintiffs, a family of a husband and wife and three young children, began to experience numerous health symptoms of unknown origin or cause, including recurring sinus problems, chronic respiratory difficulties, fatigue, persistent coughing, severe headaches and swollen, itchy and watery eyes. The family's young children were also experiencing recurring ear infections and chronic nosebleeds requiring cauterization.
The plaintiffs first became aware of the persistent water seepage, with the resultant growth of mold, in March 2003 when they were renovating their kitchen. The entire back wall of the kitchen collapsed, revealing significant water damage, water-soaked clapboards, water-saturated insulation and rampant mold growth.
On being informed of the negligent installation work and resultant significant damage, the contractor initially argued that the damage was caused by defective gutters. Subsequently, the contractor, who refused to acknowledge that significant water damage and mold growth existed, hired a subcontractor to replace portions of damaged siding. The subcontractor, the plaintiffs alleged, negligently tore off portions of the aluminum siding and failed to property refit sections of the siding back onto the house, resulting in the subcontractor duct-taping sections of the siding in an attempt to refit it.
Eventually, the contractor put his liability insurance carrier on notice of the claim. After an investigation, the insurance carrier attempted to induce the plaintiffs to completely settle their property damage claims for $2,013. The plaintiffs refused and retained legal counsel.
Legal counsel retained physicians and medical experts to evaluate and treat the plaintiffs' medical and health issues and retained environmental experts to evaluate the house for mold infestation and mold growth. Environmental testing identified the presence and growth of numerous molds and fungi harmful to human health. The house was deemed to be uninhabitable, due to dangerous air quality and mold growth presence, and the plaintiffs were advised to vacate their home, leaving behind personal belongings, furniture and clothes that also had evidence of mold spore contamination.
The contractor, subcontractor and insurer claimed that the house had a pre-existing water and moisture problem. Aggressive discovery resulted in the acquisition of documents from the insurance company acknowledging that the contractor had negligently cut the house siding, causing water damage. It was further discovered that the insurance company had in its possession a report from a claims adjuster who had undertaken a complete evaluation of liability, causation and damages. When the insurer refused to produce the report, a motion to compel the report was filed. The report clearly demonstrated that the insurer was not only aware of the contractor's negligence, but was also aware that such negligence had caused significant water damage and mold growth.
The plaintiffs served the insurance company with an extensive demand letter alleging violations of G.L.c. 176D, Sect. 3(9) and G.L. c. 93A for unfair settlement practices and acts in the business of insurance and alleging that the insurance company's failure to promptly, reasonably and fairly settle the claim had caused additional damage to the house, making it uninhabitable.
Shortly thereafter, the parties agreed to enter into mediation. An initial mediation session was not successful, resulting in the plaintiffs continuing the matter to trial. The defendants requested a second mediation session at which senior insurance representatives were in attendance. After a full second day of mediation, a settlement with all defendants was reached in the amount of $650,000.
A significant component of the settlement was the agreement of the two lending institutions that held mortgages on the mold-infested, uninhabitable house to take a discounted lump-sum payment in full satisfaction of the mortgages.
The proceeds from the settlement allowed the plaintiffs to purchase a new home.
Type of action: Negligence & tort
Injuries alleged: Personal injuries, loss of home and all personal belongings
Name of case: Withheld
Court/case no.: Essex Superior Court, no. withheld
Tried before judge or jury: N/A (mediated)
Name of mediator: John P. Ryan, Sloane & Walsh, Boston
Amount of settlement: $650,000
Date: June 27, 2007
Most helpful experts: Dr. Christine Oliver; Kenneth Weinberg, Ph.D.; Gordon Mycology Laboratory, Inc.
Attorneys: Robert C. Autieri and Elise B. Hoffman, North Andover (for the plaintiffs)
Elise B. Hoffman, an associate with the Haverhill, MA law firm of Cleversey & Massa, P.C., recently concluded an interesting and lucrative case referred to her by the Boston Bar Association Lawyer Referral Service.
Thanks to his Internet search and the BBA Lawyer Referral Service (LRS), a client from the Midwest found exactly the legal representation he needed in New England. On August 4, 2004, Steve Laskin, the lawyer who runs LRS, responded to an online request submitted via the “request a referral” feature on the LRS website. Given the narrow parameters of the request—a consumer law attorney, located in the Merrimack Valley, if possible, and licensed in both Massachusetts and New Hampshire—it was not a sure thing that the search would yield results. Fortunately for the client, the name of Elise B. Hoffman, a lawyer who first joined LRS in 2003-04, appeared on screen. Hoffman is an associate at Cleversey & Massa, P.C. in Haverhill, MA, near the New Hampshire border. Even more fortunately for the client, Hoffman accepted the case.
The plaintiff, who lives in Illinois, bought a late model Chris Craft launch advertised on e-Bay by a New Hampshire used car dealer for a Massachusetts seller who described the boat as “like brand spankin’ new.” The ad claimed the engine and outdrive were in “perfect working order.” A manufacturer’s extended warranty and a boat trailer were included in the deal. The plaintiff’s bid was $31,500. Finalizing the deal was contingent upon his personal inspection of the boat in New Hampshire, where the boat was being stored and displayed at a private home near the Massachusetts border. The dealership and home were owned by two friends of the seller.
Since there was neither a plug in the bottom of the boat nor a crash kit that would have enabled him to test drive the boat on the water, the buyer ran a hose through the engine to test it, and visually inspected the boat, which appeared to be in excellent condition. The seller provided a boilerplate Motor Vehicle Purchase Agreement/Bill of Sale with his name filled in as seller of the boat “as is.” He was not actually present when the buyer took possession of the boat. Rather, the owner of the private home signed as seller on his behalf. The buyer then towed the boat away. The title to the boat and service records were not provided to the buyer at that time, or at any time thereafter; nor was any written documentation of the extended warranty provided.
When the buyer put the boat in the water in Illinois, he found that neither the steering nor the gear/throttle shift worked properly. An expert inspection revealed water contamination in the power steering and fuel systems, corrosion of the terminals and connectors on the entire engine, and a non-functioning electronic control module. Further investigation uncovered the fact that the boat had been repaired in a Maine boat shop, after it had been submerged in brackish water during a storm.
The buyer immediately contacted the seller to demand a refund of his purchase price and that the Seller re-take possession of the boat. The seller refused, citing the “as is” clause in their agreement. Very soon afterwards the buyer contacted the LRS for a referral.
Hoffman’s attempts to contact the seller by phone were unsuccessful, but she was able to speak to the seller’s friends who had shown the boat to the buyer, witnessed the inspection and signed the Agreement on the seller’s behalf. Based on those conversations and subsequent conversations with the seller’s attorney, Hoffman said it became clear that settlement without litigation was unlikely. She filed suit in the New Hampshire Superior Court for fraud, violation of the UCC implied warranty of fitness for a particular purpose, and RSA 358-A (the New Hampshire Consumer Protection Act). New Hampshire was selected as the venue since the transaction had taken place there, and two of the potential defendants were there. Service upon all the defendants proved time consuming and difficult. Finally, said Hoffman, “I had long arm service upon (the seller) in Massachusetts, New Hampshire sheriff’s service and a Petition to Attach Real Estate upon (one of the other defendants), and an affidavit accepting service upon (the other defendant) from his attorney.”
An attorney for one of the New Hampshire defendants took the lead in the settlement negotiations. After several rounds of offers and counteroffers, and one day before the hearing on the real estate attachment, the parties agreed that the plaintiff would receive a settlement covering the cost of the boat plus most of his incidental expenses, and that the defendants would transport the boat back to New Hampshire at their own expense.
Hoffman’s growing practice is primarily in business litigation, including consumer law, collections, and employment law. The ability to practice law in both Massachusetts and New Hampshire is crucial to her continued success. The procedural and substantive differences between the two states are considerable, and Hoffman’s opportunity to handle this case has significantly impacted her practice. The facts of the case required in-depth analysis of both venues, offering her a prime opportunity to expand her experience.
With the excellent support of her colleagues, Philip R. Cleversey and Charles Massa, Jr., at the firm, and the positive impact of her LRS membership, she expects to continue helping clients and enjoying her work well into the future.
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