 |  |
My home is ruined. Can the law help me get it fixed?
Yes. If the mold contamination was caused by someone else's negligence or breach of contract or warranty, you can recover the costs of getting it fixed. Suits to recover the costs of removing mold from a home (and replacing or cleaning affected personal property such as clothing, bedding and furniture) are becoming known in the legal world as "remediation" suits, distinguishing this type of claim from claims for injuries or illnesses resulting from exposure to mold. Of, course, in many cases both types of claim will be involved in the same suit.
When should I call an attorney?
You should have your attorney involved at the earliest possible date. An attorney will be able to give you preliminary advice on not only the legal implications involved, but on practical matters such as whether professional environmental assessments of your property should be made, and what medical/toxicological advice you should seek. If your attorney is experienced in toxic tort matters, and mold cases in particular, he/she may well already have in place a team of experienced medical and environmental experts that will help in preparing and presenting your case. The sooner this team is involved, the better your chances will ultimately be. How much will an attorney cost? Very little at the outset. Our firm, for example, will be happy to meet with you preliminarily without charge. After an initial assessment of your case, we will be able to discuss with you how best to proceed. If the case appears to us to be a good one (meaning both that you have a good chance of winning, and significant dollars are involved) we may be willing to take the case on a contingent or partially contingent basis, meaning the bulk of our fee will be a percentage of any settlement or recovery, and you pay only an agreed guaranteed retainer. You may also choose to pay by the hour, and in some cases that may be best for you. In hourly paid cases we will estimate the likely fee for you, and keep you advised as we go along.
Can I recover my attorneys fees if I win?
Unfortunately not under present law. Efforts are being made to get the Minnesota legislature to change this. You can help by writing your state representative (http://www.house.leg.state.mn.us/members/hmem.asp) and senator (http://www.senate.leg.state.mn.us/members/), and telling them that the present law is unfair. Even if you win an amount sufficient to fix your home, a portion of this win will still be lost due to the expense of pursuing the case. Moreover, the insurance companies for the contractors can much more easily afford to defend the case than you can to prosecute it, so they can gain an advantage in settlement negotiations by delaying settlement and outspending you.
Other than attorneys fees, what costs might I have to cover?
On the front end, there will be a need for an environmental assessment if your home has had significant water damage. You will need to know not only about the obvious mold that anyone can see, but the possible hidden amplification sources covered by wallboard, plaster or other construction materials. Before your home can be successfully remediated, you must understand the full extent of the problem. Depending on the size of your home and the extent of the water invasion, an environmental assessment might run from $1,000 to a few thousand dollars. If litigation proceeds, you will also need opinions from a variety of experts, including doctors, building engineers and contractors. These opinions can get costly, particularly if the experts are required to testify. Some or all of your medical examinations and treatments may be covered by your medical insurance, but testimony is not covered by insurance. We will discuss with you at an early date the types of expert consultation we believe will be helpful in your case, how much we think it will cost and what means might be available for paying for it.
In addition to the expert fees, there will be court filing fees, service of process fees, court reporter fees for copies of the deposition transcripts and possible other costs along the way. We will do our gest to estimate these for you and to keep you informed along the way.
Can I recover these costs if I win?|
Some of them, possibly all. The law provides that you can recover “costs and disbursements” if you win your case. However, the amount of these to be awarded in a given case is discretionary with the judge.
How long do I have to sue?
This is tricky. We like to base our suits against contractors under both negligence and statutory warranty theories. See “What legal claims can I make” below. Negligence actions must be brought within two years of the time when you discovered or reasonably should have discovered your “injury.” The term “injury” is not defined in the statute. Suppose, for example, that you noticed water on your window sills in 2000 that turned out to be the result of poorly installed windows, but that you did not learn until you had an expert inspection in 2004 that your stucco system was also failing. The defense will argue that you knew of your “injury,” water intrusion, in 2000, and that it should not matter that you did not know all of the causes of water intrusion in your home until 2004. Arguments of this kind take place regularly in remediation suits. The appellate courts are slowly working their way through these issues as cases come up to them. Your attorneys can help you determine what the courts may do with the particular facts of your case.
The limits for the statutory warranty claim are somewhat different from those governing a negligence theory. The warranty statute provides that you must bring suit within two years of your contractor’s breach, which the courts have defined as the time when you knew or should have known that the contractor would not or could not honor the warranty. The warranty statute has included in it a dangerous “trap for the unwary.” It excludes warranty protection for any loss or damage not reported by the owner to the contractor in writing within six months after the vendee or the owner discovers or should have discovered the loss or damage. Most normal people pick up the phone and call to report a problem. This statute says that phone calls are not enough. You must write and do it within six months or you lose your warranty. Will the courts strictly enforce this provision where there is clear evidence that the contractor had actual notice of the problem, and even performed his own inspection? We do not know at this time. Applicable to both the negligence and the statutory warranty theories is a “statute of repose” that bars the commencement of claims more than ten years after substantial completion of construction. Exceptions are made where the discovery of injury (or the breach under the warranty statute) takes place in the ninth or tenth year. In those events, you have a full two years from the discovery, but in no event more than twelve years. Who will I sue?
Mold develops because water somehow got into a home and was allowed to remain there too long. This usually does not happen without someone having done something wrong. In some cases the homeowner or tenant may himself be at fault, and there will be no recourse against anyone else. Where someone other than the tenant or homeowner is at fault, the most likely targets are as follows: A landlord who was advised of the water problem, and failed to fix it in a timely manner.
An insurance company that failed to properly or adequately remediate a mold problem that resulted from an insured water event.
A contractor whose defective workmanship caused the water problem that resulted in mold growth.
The supplier of defective materials or appliances that were supposed to keep water or moisture out, but failed to do so.
The seller of a home who concealed water or mold problems.
What legal claims can I make?
What are my chances of settling my case?
Pretty good, if you are willing and able to prepare it for trial. Experience shows that you are unlikely to get any early settlement offers that you would want to accept. There are many reasons for this, including the number of defendants, the unsettled nature of many of the legal issues and the tendency in these cases for the contractors’ insurance companies to resist your claim. But settlements do regularly occur when cases get closer to trial.
You should make every effort to settle your case before trial. Trials are expensive. Even if you are not paying your attorneys by the hour, expert witness fees and exhibit preparation costs can be significant. Trials are also unpredictable. You should never count on a jury to do what you want, even though you believe very strongly in your case. Every trial lawyer has a basketful of woeful tales to tell about strange jury results. Moreover, even if you get a good result at trial, nobody will be writing you a check the day the verdict comes in. Many months in post-trial wrangling can go on, and this can stretch even further if appeals are taken.
The flip side, however, is that you should never be afraid to go to trial if your attorney feels your chances are good, and the settlement offers are too low under the circumstances as you and your attorney see them. Obviously, you should not expect to get everything you believe you’ve lost as a settlement. In discounting your losses to arrive at a reasonable settlement amount, you should carefully consider both the expense and the downside potential risks of trial. Your attorneys will do their best to help you with this.
I think the mold has affected my health. Can I recover for this?
Yes, if the court allows your experts to give an opinion that you have an illness caused by mold, and the jury believes that opinion. What expert opinions the courts will allow is a matter of developing law, and may differ somewhat from state to state. Some effects of mold are well established. For example, it is probable that most state courts will allow expert testimony to the effect that exposure to mold causes allergic reactions in many individuals. The issue in such cases will then be whether the specific allergic reaction involved resulted from the particular mold exposure, or in whole or in part from some other cause. The toxic, as opposed to allergic, effects of mold on human health is more controversial. There has been recent medical research tending to establish mold mycotoxins as causes of human illness, but whether this research will become routinely accepted by courts is not yet known. Whether allergies or toxic injuries are alleged, there will be an issue regarding whether a given mold infestation was sufficiently large to cause the alleged illness. There are currently no governmental standards available to help resolve the matter. You can also expect a fight over whether the mold in your home caused your symptoms, rather than the molds that occur naturally in the environment. Establishing medical causation in lawsuits is seldom easy, but plaintiffs have a pretty good batting average when they and their experts are well prepared. More problematic is the dollar value of your illness case. Juries are not likely to award large damages for transient allergies, even though the symptoms were severely inconvenient to the person suffering them. If more serious mold-related injuries can be proven, then larger jury awards can be expected, but you should not at this juncture believe that establishing a large award mold illness case will be easy.
How long will it take to resolve my case?
If litigation is involved, you should count on at least a year, and quite possibly much longer. Your case might settle out of court, but probably not until trial is fairly close. Some cases do settle at an early date. You should hope for this, but not count on it. If you try the case and win, that will not necessarily be the end of the dispute. Post-trial motions and appeals can add months to the time before you realize on the verdict.
What goes on during the litigation process? The phases of the litigation will be something like the following. Don't expect the phases to be sharply defined in time. In fact, they will overlap to some degree:
Pleadings. Your claim will be drawn up in the form of legal complaint, and will be served on the defendant and filed with the court. The defendant will then serve and file an answer to your claim, and perhaps in some cases a "counterclaim" alleging that you owe the defendant something (such as rent in a landlord case). Either party may add additional parties as facts become known. For example, if you sue your contractor builder for construction defects in your home, that contractor may bring in all or some of its subcontractors as additional defendants.
Discovery. Each party gets to ask questions of the others to establish the facts. These questions may be in writing (interrogatories, document production requests, requests for admissions) or in person (depositions). You must expect that your deposition will be taken, and that this will be somewhat uncomfortable for you. You will appear in person (with your lawyer, of course) probably at the office ofthe defense attorney, and will be subjected to questions regarding your case by the defense attorney, and the attorneys for any other parties, under oath before a court reporter. This process can take several hours, and, in complicated cases, more than one day. In some cases non-party witnesses may also have their depositions taken. An example might be a neighbor of yours who observed the moldy conditions in your home, or who heard your landlord admit that he knew about the mold and was not going to fix the problem. If you make a claim for mold-related illness, you must also expect to undergo what is euphemistically called an "independent medical examination." You will be required to present yourself for examination by a doctor chosen by the defense who is not "independent" at all, and whose job it will be to opine after examining you (1) that you have no illness, or (2) that whatever illness you may have is not caused by mold, or (3) that if you do have a mold-related illness, it must have been caused by some other mold.
Motions. The parties may and probably will encounter a variety of disputes that must be resolved by the court prior to trial. Such disputes are presented to the court by written motions made by one party or the other. The motions are supported and opposed by written legal briefs and accompanying affidavits and exhibits, and are presented to the court at hearings scheduled for that purpose. There may be disputes over the discovery matters listed above. In mold cases there probably will be disputes over what expert testimony will be permissible. There may also be "summary judgment" motions, at which one side or the other will attempt to persuade the court that the issues are so clearly in its favor that the case can be decided by the judge without a trial.
Pre-trial/Settlement/Alternative Dispute Resolution . As the case moves closer to trial the court will institute procedures, including pre-trial hearings, designed to promote settlement, or if settlement fails, to narrow the issues that will have to be tried. In recent years a procedure generally known as Alternative Dispute Resolution (ADR) has arisen to help promote pre-trial settlements. There are many different possible forms of ADR, but the one you will most likely be involved in is known as "mediation." Here the parties appear before a professional "mediator" (who is paid by the hour, the parties sharing the fee), who will meet with them first together, and then separately, to see if he can help them reach agreement. Anything said by any of the parties in mediation is confidential, and cannot be used as evidence at trial.
Final Trial Preparation and Trial. Witness and exhibit lists and proposed jury instructions will be exchanged by the parties, final pre-trial motions will be submitted and heard by the court, the jury will be selected and the fun will begin.
Appeals. Subsequent to the trial, be prepared for a variety of post-trial maneuvering, including motions and appeals. These can add significant time and expense to the litigation process.
Jacobberger, Micallef & Associates, LLC
PO Box 202093
Bloomington MN 55420
Deliveries:
2701 Overlook Drive
Bloomington MN 55431
651-223-5340
Email Located in Bloomington, Minnesota, Jacobberger, Micallef & Associates, LLC proudly serves clients throughout the counties of Dakota, Hennipen, Washington, Carver, Ramsey, Scott, and Wright, including the cities of Minneapolis, St. Paul, Mankato, Duluth, St. Cloud, Rochester, as well as the entire Twin Cites Metro Area & Greater Minnesota.
| |
