Opinion
No. 53628-1-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 03-2-24281-1. Judgment or order under review. Date filed: 01/05/2004. Judge signing: Hon. Mary I Yu.
Counsel for Appellant(s), Guy William Beckett, Beckett Law Offices PLLC, 811 1st Ave Ste 620, Seattle, WA 98104.
Counsel for Respondent(s), Joanne Thomas Blackburn, Attorney at Law, 2nd Seneca Bldg 18 Fl, 1191 2nd Ave, Seattle, WA 98101-3438.
Gary Dean Swearingen, Garvey Schubert Barer, 1191 2nd Ave Fl 18, Seattle, WA 98101-3438.
We are presented with only one issue on appeal: when did Sandra Yeater discover, or in the exercise of due diligence should she have discovered, that the defendants intentionally withheld information that her house contained toxic mold? Yeater filed this lawsuit in May 2003, for intentional and negligent misrepresentation and outrage. She sought damages arising from health problems caused by mold growth in her home. The superior court granted the defendants' motion for summary judgment and dismissed Yeater's claims after concluding that the three-year limitations period had expired. After viewing the evidence in Yeater's favor, we conclude that she knew the factual basis for her claims in 1999 when she accused the defendants in writing of knowingly misrepresenting the safety of her home. Thus, the limitations period expired prior to 2003, and we affirm.
I.
Sandra Yeater and her former husband, Matthew Davenport, moved into a new home built by Ledcor Industries. In February of 1999, Yeater and Davenport returned from vacation to find water in their basement, which was caused by defectively designed water supply and drainage systems. They immediately contacted Ledcor to report the problem and demand that Ledcor repair the damage.
Ledcor contacted its insurer, Commonwealth Insurance Company. Commonwealth hired Ballard and Company Adjusters to assess the claim, and Ballard assigned Patrick Mulligan to investigate the damage at Yeater's home. Mulligan contracted two companies Aerotech Laboratories and Lab/Cor to test samples from the house for mold content. Both companies issued reports in May of 1999, which indicated the presence of mold, including Stachybotrys. Stachybotrys is an allergen that causes wheezing, shortness of breath, and chest tightness.
The defendants allegedly represented to Yeater that it was safe for her to remain in her home. But by late spring of 1999, Yeater was experiencing symptoms associated with mold exposure, including breathing difficulty, sinus problems, fatigue, and headaches. A letter from Yeater to Ledcor, dated March 24, 1999, indicated that Yeater knew mold was in her home and that it posed a danger to her health.
By September 16, 1999, Yeater had received the results of the Lab/Cor investigation and communicated with Lab/Cor experts. In a letter addressed to Mulligan, Yeater stated that the defendants' `Ph.D. toxic mold abatement experts,' who she indicated were Lab/Cor representatives, had educated her about toxic mold and Stachybotrys. She said she was `plagued inside and out with these `toxic molds." Yeater also accused the defendants of `knowingly' expecting them to live in their "sick home." Yeater claims, however, that she did not receive the Aerotech report until October of 2000, when arbitration over Yeater's property damages commenced and the report surfaced.
On May 2, 2003, Yeater filed a lawsuit against Commonwealth, Ballard, and Mulligan for violation of the Consumer Protection Act, breach of oral contract, negligent and intentional misrepresentation, and outrage. Defendants' moved for summary judgment and argued that Yeater's claims were barred by the statute of limitations. The trial court granted the defendants' motion and dismissed Yeater's claims. Yeater requested reconsideration, which the court denied. Yeater appeals the judgment in respect to her claims of misrepresentation and outrage.
Yeater conceded that the statute of limitations had run on her breach of contract claim. She does not assign error to the judgment concerning her Consumer Protection Act claim.
II.
We review an appeal from summary judgment de novo. Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The evidence must be viewed in the light most favorable to the nonmoving party. The statute of limitations for claims of misrepresentation and outrage is three years. Under the discovery rule, a cause of action does not accrue until the person harmed either knows, or in the exercise of due diligence should have known, the factual basis for each element of the cause of action. The question of when a plaintiff should have discovered the factual basis for a claim is a material fact left to the fact finder, unless, as a matter of law, reasonable minds could reach but one conclusion.
Busenius v. Horan, 53 Wn. App. 662, 666, 769 P.2d 869 (1989).
Stenger v. Stanwood Sch. Dist., 95 Wn. App. 802, 812, 977 P.2d 660 (1999).
RCW 4.16.080; Doe v. Finch, 133 Wn.2d 96, 101, 942 P.2d 359 (1997); Sabey v. Howard Johnson Co., 101 Wn. App. 575, 592, 5 P.3d 730 (2000).
Beard v. King County, 76 Wn. App. 863, 867, 889 P.2d 501 (1995); Zaleck v. Everett Clinic, 60 Wn. App. 107, 113-14, 802 P.2d 826 (1991).
Hudson v. Condon, 101 Wn. App. 866, 875, 6 P.3d 615 (2000).
Yeater argues that she relied on the defendants' misrepresentations that she could safely live in her home from May to September of 1999. Yeater admits that by September of 1999 she knew the defendants had wrongly represented to her that her home was safe. She claims, however, that she did not know the defendants actually knew of the risks to her when they misrepresented the dangers until she discovered the Aerotech report in October of 2000.
To the contrary, the evidence shows that Yeater had the factual basis for her claims in 1999.
A. Intentional Misrepresentation
Intentional misrepresentation is a fraud. To prove intentional misrepresentation a plaintiff must establish that the defendant knowingly made a false representation of a material fact, with the intent that the plaintiff act upon it, and that the plaintiff was in fact ignorant of its falsity and rightfully relied on the representation, thereby suffering damages. Mere suspicion of a fraud is not enough to start the clock on the statute of limitations. Although a smoking gun is not necessary, the plaintiff must know of `evidential facts leading to a belief in the fraud and by which the existence of the fraud may be established.'
W. Coast, Inc. v. Snohomish County, 112 Wn. App. 200, 206, 48 P.3d 997 (2002) (citing Stiley v. Block, 130 Wn.2d 486, 505, 925 P.2d 194 (1996)).
Busenius, 53 Wn. App. at 667.
Beard, 76 Wn. App. at 868.
Busenius, 53 Wn. App. at 667.
Yeater knew the essential facts behind her intentional misrepresentation claim in 1999. She knew of the mold in her home and the dangers it posed to her health. Yeater also knew of the Lab/Cor results and communicated with Lab/Cor experts. She should have reasonably concluded that the defendants, who contracted and paid for the Lab/Cor report, received the same information. Moreover, Yeater expressly accused the defendants of `knowingly' allowing her to live in her `sick home' for six months. This statement not only provides further evidence that she knew the defendants were aware of the health hazards in her home, but also that she believed they had intentionally misrepresented the safety of her home. Yeater's statement also makes the discovery of the Aerotech report inconsequential. A reasonable jury could only conclude that the limitations period commenced in 1999 and expired before Yeater filed the lawsuit in 2003.
B. Negligent Misrepresentation
Yeater's negligent misrepresentation claim must be dismissed based on her concessions. `[T]o prevail on a claim of negligent misrepresentation, a plaintiff must prove by clear, cogent, and convincing evidence that he or she justifiably relied on the information that the defendant negligently supplied.' Negligence does not require intent. By conceding that she knew defendants misrepresented the safety of her home in 1999, Yeater in essence stipulated that she had the factual basis for a negligent misrepresentation claim in 1999. The letter to Mulligan supplies further evidence that she knew of the dangers, was educated by the defendants' experts, knew of the Lab/Cor results, and believed the defendants `knowingly' and falsely represented to her that her home was safe.
Lawyers Title Ins. Corp. v. Baik, 147 Wn.2d 536, 545, 55 P.3d 619 (2002).
C. Outrage
To establish an outrage claim, a plaintiff must prove the defendant intentionally or recklessly inflicted emotional distress through extreme or outrageous conduct, which caused the plaintiff to suffer severe emotional distress. Yeater argues that the defendants' extreme and outrageous behavior was their failure to apprise her of the information contained in the Aerotech report, namely the dangers of her mold-infested house. But, assuming this behavior was outrageous, Yeater's letter clearly indicates that she discovered this information in 1999 and believed the defendants intentionally kept it from her.
Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998) (citing Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989)).
Viewing the evidence in Yeater's favor, a reasonable fact finder could only conclude that Yeater discovered the factual basis for her claims in 1999 and the statute of limitations expired before she filed a lawsuit in 2003.
AFFIRMED.
ELLINGTON, J., COLEMAN, J., concur.