Opinion
NO. 03-18-00710-CV
09-17-2020
Builder Services Group, Inc., d/b/a Johnson Insulation, Appellant v. Alan Lynn Taylor and Donna Kay Taylor, Individually and As Next Friend of Sarah Kaylyn Taylor, Appellees
FROM THE 33RD DISTRICT COURT OF SAN SABA COUNTY
NO. 9433, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING CONCURRING AND DISSENTING OPINION
To prevail on its challenge to the legal sufficiency of the evidence supporting the jury's finding that Builder Services' acts or omissions proximately caused the property damage at issue, Builder Services must demonstrate that no evidence supports the finding. See Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex. 2014). To prevail on its factual-sufficiency challenge, Builder Services must show the evidence supporting the finding is so weak as to render the judgment clearly wrong or manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Because Builder Services has not satisfied either of these burdens, I respectfully dissent in part.
The Supreme Court of Texas has held that lay testimony regarding the cause of property damage may suffice to support a causation finding. Lyons v. Millers Cas. Ins., 866 S.W.2d 597, 601 (Tex. 1993) (accepting as sufficient owner's and neighbors' lay testimony as to whether storm caused structural damage to residence). Generally, lay testimony will suffice "if it establishes a sequence of events demonstrating a strong, logically traceable connection" between the alleged causal factor and the complained-of condition. See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (gathering cases before allowing lay testimony regarding source and effects of noxious fumes). In this case, the Taylors introduced a combination of lay and expert testimony to establish such a sequence.
Donna and Alan Taylor both testified that their construction site had no unusual odor prior to the installation of the insulation. However, immediately after its installation, Donna Taylor noticed a "strong chemical smell" that persisted throughout construction and after the family moved in. After moving in, Alan Taylor noticed that the odor would increase during warm weather but testified that even in the coldest weather, the odor was so obtrusive as to require the family to leave the windows open in an attempt to "air out" the house. Donna Taylor further testified that the offensive odor permeated everything they owned, leaving their clothing and other personal property so unusable that she could not even donate the items to charity.
Donna Taylor testified that she suspected a problem with the insulation from the day of its installation. She testified that she heard the installers shouting at one another the day of installation and that she believed something was wrong. She later learned that the hose's heater had malfunctioned but said that no one had informed her of that fact during the installation. She testified that unlike examples she had seen, the insulation had cured to a shiny, "dripping-like" finish. In addition, the spray foam had unexpectedly spilled onto the home's foundation, requiring slab scraping before construction could proceed.
Robert Gilmour, technical services manager for the manufacturer of the spray-foam insulation, testified that the drippy, air-pocketed appearance of the foam "means there could be a spray technique [issue] or the hosing issue can lead to that type of phenomenon." He continued, "It doesn't mean that the foam quality is not there . . . it means that it wasn't installed properly." Gilmour then elaborated on the significance of the undisputed malfunction of the hose heater: "If the hose heat was not working properly and the applicator was ignoring that, knowing that, that would be an improper installation." Gilmour's testimony thus undermines any argument that the Taylors presented no evidence of a departure from the standard of care.
Other witnesses explained how this improper installation of the spray-foam insulation might result in an offensive odor. David Nicewicz, Ph.D., testified that the resin component of the uninstalled insulation comprises several chemicals, including polyether polyols, flame retardants, and certain amines that act as catalysts and give off a "pretty funky odor." He testified that failure to properly heat the spray-foam insulation during installation would result in some of those chemicals remaining in the insulation, unconsumed by the chemical reaction:
So in order for a chemical reaction to take place, one of the key factors or essentially variables that you can control is heat. Generally speaking, the warmer the temperature of the reaction or the reactants, the faster a chemical reaction can go. So in this case, the two components, the A and B side[s of the spray-foam insulation], have to be heated to a certain temperature above typical [sic] what I would say room temperature would be in order for them to react completely. Otherwise, there could be more of the A or B side remaining after the spray polyurethane foam is installed.Nicewicz further testified that visual inspection suggested that the Taylors' insulation was not installed at a sufficiently high temperature to consume the catalysts, which is consistent with the fact that the application hose was not heating properly during the Taylors' installation.
Andy Rowland, a certified industrial hygienist, presented the results of an air-quality assessment that confirmed the presence of formaldehyde and amines within the home and confirmed that the insulation was off-gassing certain chemicals. He also testified that, as a general matter, spray-foam insulation is known to cause offensive odors and observed that there are "lots of these cases" being litigated.
The Taylors testified that they asked Robert Brockman, the owner of Brockman Painting, to inspect the foam. Over the course of his four-decade career, Brockman had sometimes contracted for the installation of spray-foam insulation for buildings he constructed or remodeled and was therefore familiar with the product. He testified that he inspected the Taylors home and that "there was a chemical smell right when . . . [the Taylors] opened the attic," where much of the insulation was located. He described the odor as "pretty pungent." Brockman testified that the smell was coming directly from the spray-foam insulation.
The Taylors also reported the offensive odor to Truman Farris, an expert in heating, ventilation, and air conditioning, and someone familiar with spray-foam insulation. Farris testified that he inspected the home and noticed a "pretty significant odor" such "that it was hard to stay in the home for long periods of time." He observed that "the odor and fumes that were in the house would irritate your eyes, irritate your nose." Farris indicated that the odor was strongest in the attic. He further testified that the insulation he inspected was unlike any he had encountered in that it had a glossy, drippy finish to it. Farris described his efforts to reduce the odor in the home and reported that those efforts were unavailing. He then testified that he never encountered trouble eliminating odors arising from engineered wood, open-combustion water heaters, windows, paint, or lacquered cabinets, thus leaving the insulation as the most likely cause of the odor.
Reviewing this record under the applicable standard, I cannot conclude there is no evidence that Builder Services' installation of the spray-foam insulation caused the offensive odor and the resulting property damage. Nor is the evidence so weak as to render the jury's causation finding clearly wrong or manifestly unjust. As a consequence, Builder Services has not shown that the evidence is legally or factually insufficient to support the jury's finding. See Peña, 442 S.W.3d at 263; City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Cain, 709 S.W.2d at 176. I would uphold the jury's finding of causation with respect to the property damage and would reach the other issues raised on appeal. Because the Court does not do so, I respectfully dissent in part.
/s/_________
Edward Smith, Justice Before Justices Goodwin, Kelly, and Smith Filed: September 17, 2020