Opinion
CIVIL ACTION 00-1209 SECTION "T"(3)
March 24, 2004
ORDER AND REASONS
Before the Court is a Motion for Partial Summary Judgment filed on behalf of the defeadants-in-crossclaim, QUIGLEY HOME BUILDERS, INC./QUIGLEY HOMES, INC. "Quigley"). Quigley seeks an order holding that plaintiff's (Ravannacks) claims are limited to the remedies created under Louisiana's New Home Warranty Act (NHWA). The Court, having considered the arguments of counsel, the evidence submitted, the record, the law and applicable jurisprudence, is fully advised in the premises and ready to rule.
La.R.S.9: 3141, et seq.
I. BACKGROUND:
This case arises from the construction of a residence for the Ravannacks by Quigley. In early 1992, Quigley acted as general contractor in the construction of a home for the Ravannacks, located at 5432 Janice in Kenner, Louisiana, pursuant to a contract between Quigley and the Ravannacks. During construction of the residence, Quigely as the general contractor, sub-contracted with Matherne Plastering Company, Inc. (Matherne) for the application of an exterior insulated finish system (EIFS), a type of synthetic stucco, to the residence.
In October 1992, the Ravannacks moved into the home and paid Quigley $196,000 as payment in full for the project. Sometime after delivery of the residence was made, the Ravannacks informed Quigley of water intrusion to the home. As a result of this, Quigley performed work on the house to remedy the problem.
In April of 1999, the Ravannacks hired an independent testing expert to investigate the cause of the continued water intrusion. It is alleged the hired experts determined the problem stemmed from the improper installation of the home's EIFS, windows, doors and exterior decorative elements. The Ravannacks allege in their cross-claim petition that defects in the construction of their home, particularly the malfunction of the EEFS installed as the exterior cladding, has caused them property and other damages, including but not limited to major structural damage.
Additionally, the Ravannacks claim that as a result of the construction defects, the home has been plagued with extensive, severe and toxic mold, mildew, algae and other harmful organisms which require special abatement remediation. These problems, according to the Ravannacks, have caused them severe and possibly permanent physical and emotional damages. Moreover, because of the alleged property damage to the home, the Ravannacks claim that they have been forced to vacate the home, thereby causing them to sustain additional serious and permanent, physical and emotional injuries.
II. ARGUMENTS OF THE RESPECTIVE PARTIES:
A. Arguments of the defendants-in-crossclaim, Quigley Home Builders, Inc. and Quigley Homes, Inc., in support of the motion:
Quigley asserts that the Ravannacks claims for breach of contract, negligence, misrepresentation and violations of the Louisiana Unfair Trade Practices and Consumer Protection Law and La.C.C. Art. 2545 should be dismissed given the exclusivity provisions of the NHWA. Additionally, Quigley contends that many of the damage claims asserted by the Ravannacks are expressly excluded and/or are not recoverable as a matter of law, specifically, the claims for:
1. Cost of remediation, removal and abatement of mold, mildew, algea, toxic mold, etc . . . for the Ravannacks' personal belongings;
2. Diminution of the value of the home for resale;
3. Physical and emotional personal injuries;
4. Lejeune damages for James and Jocel Ravannack as a result of the personal injuries to each other and each of their children;
5. Extreme inconvenience, aggravation, emotional distress and mental anguish;
6. Living expenses, expenses to vacate the home, and expenses to obtain comparable living quarters;
7. Expenses related to their current home;
8. Damages associated with their alleged marital troubles.
Lastly, Quigley claims that pursuant to the provisions of the NHWA, the Ravannacks are * precluded from recovering any damages from Quigley totaling more than the purchase price of the home, which in this instance is $196,000.
B. Arguments of the plaintiffs in opposition to the motion:
The Ravannacks assert that Quigley's reliance on and interpretation of the NHWA is improper. The Ravannacks contend that the NHWA does not preclude their claims based on Quigely's breach of legal and contractual duties, which, the Ravannacks contend, occurred prior or subsequent to the construction and/or occupation of the home, and/or which arose in connection with Quigley's alleged attempts to conceal the defects in the home.
First, the Ravannacks assert that included within the terms of the building contract are the requirements that all work be done in accordance with the plans and specifications approved and signed by the owner, and that the contractor deliver the job in good condition and complete. The Ravannacks claim that since the EFIS, windows, doors and exterior decorative elements were improperly installed, the contract provisions were not met, and, as a result, Quigley is in breach of the building contract. The Ravannack's rely on these contractual provisions to remove their claims from the purview of the NHWA and allow them contract law remedies.
Second, the Ravannacks dispute that the home was ever completed and, as such, the NHWA is not implicated. In support of this contention, the Ravannacks allege Quigley failed to install essential components of the EIFS, and, therefore, never completed the project. Finally, the Ravannacks dispute the purchase price of the home of $196,000, stating that they may have paid additional amounts directly to Frank Quigley thereby increasing the possible recovery amount under the NHWA. III. LAW AND ANALYSIS:
The Ravannacks also claim that to enforce the NHWA as the exclusive remedy available to the Ravannacks would be unconstitutional. The Ravannacks, however, do not develop this argument past their assertion and, as a result, the question of constitutionality is not properly before this court.
A. Law on Summary Judgment:
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Stults v. Conoco, 76 F.3d 651 (5th Cir. 1996), (citing Skotak v. Tenneco. Resins, Inc., 953 F.2d 909, 912-13 (5th Cir.) (quotingCelotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986) (emphasis supplied); Tubacex, Inc. v. M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Industrial Co., 475 U.S. at 588. Finally, the Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986).
B. The Court's Analysis:
Under La.R.S. 9:3150, the NHWA provides the exclusive remedies, warranties and prescriptive periods as between builder and owner relative to new home construction, and no other provisions of law relative to warranties and redhibitory vices and defects apply. According to the NHWA, the warranty commencement date is the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first. The Ravannacks claim that their present action is in part for breach of the construction contract, which breach occurred before the residence was completed and occupied. The alleged breach was a result of Quigley's failure to instal the EEFS correctly and subsequently failing to correct the water intrusion problem. Thus the Ravannacks urge that the matter is not exclusively governed by the NHWA.
LA.R.S.9:3141(7)
The Ravannacks rely on Austin Homes v. Thibodeaux, 821 So.2d 10 (La.App. 3 Cir. 2002) as evidence that Louisiana courts confirm their argument that the NHWA does not limit the legal remedies available to a plaintiff who suffers an injury. This Court finds this case inapplicable to the case at bar. In Austin, the contractor was fired after completing only fifty percent of home. As such, the warranties created under the NHWA were not at issue, and the Court of Appeal applied contract law.
Where the cause of action has not wholly arisen from construction defects, violations of the building code, or poor workmanship, Louisiana courts have determined the NHWA was not the sole remedy available to the homeowner. The Act establishes a ten year builder's warranty for a major structural defect; a major structural defect is defined to include physical damage caused by failure of the load bearing portions, including walls, which affects their functions to the extent the home becomes unsafe, unsanitary or otherwise unlivable.
See e.g Stokes v. Oster, 807 So.2d 987 (La.App. 5 Cir. 2002); Thorn v. Caskey, 745 So.2d 653 (La.App. 2 Cir. 1999); Squires v. Nationwide Housing, 715 So.2d 538 (La.App. 3 Cir. 1998); Melancon v. Sunshine Construction, 712 So.2d 1011 (La.App. 1 Cir. 1998); Leon v. Deters Custom Homes, 711 So.2d 346 (La.App. 1 Cir. 1998).
The NHWA excludes recovery of certain types of damages by the home owner. Excluded by the Act is any defect in, or any defect caused by, materials or work supplied by anyone other than the builder, or any employee, agent or subcontractor of the builder; thus included in the Act is any defect caused by materials or work supplied by the builder or his agent, employee or subcontractor. The NHWA further excludes damage to real property which is not part of the home covered by warranty and which is not included in the purchase price of the house; loss or damage which the owner has not taken timely action to minimize; loss or damage which does not constitute a defect in the construction of the home by the builder; any condition which does not result in actual physical damage to the home; bodily injury or damage to personal property; any cost of shelter, transportation, food, moving, storage or other incidental expense related to the relocation during the repair; and consequential damages. Lastly, all provisions of the NHWA "apply to any defect although there is no building standard directly regulating the defective workmanship or materials."
The damages complained of by the Ravannacks and addressed in this Partial Motion for Summary Judgement arise wholly from the alleged construction defects and alleged defects in the EIFS material. Here, the construction was completed and the Ravannacks occupied the home. The damages which occurred are alleged to be a result of a defect in construction within the terms of the statute. Under these circumstances, the NHWA is the owners exclusive remedy against the builder and the Ravannacks9 claims are limited accordingly.
Through the NHWA, the Louisiana Legislature limited recovery against builders to the actual damages necessary to compensate the homeowner for defects in the construction of the home plus attorney fees. The legislature further limited the possible recovery amount with respect to the defects in the home to a maximum totaling the original purchase price of the home. Therefore, this court holds that the Ravannacks' recovery is limited to the amount they can prove was paid for the residence plus attorney's fees.
Therefore, it is the opinion of this Court that genuine issues of material fact does not exist such that partial summary judgment is appropriate in this matter.
Accordingly,
IT IS ORDERED that the Motion for Partial Summary Judgment filed on behalf of the defendant-in-crossclaim is hereby GRANTED.