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The air that I breathe

The air that I breathe

December 20
13:09 2019

The air that I breathe

David DeFelice owned property in Metairie, Louisiana. He and Katie Hondroulis were living in the house when, on June 10, 2016, the house sustained water damage as the result of an overflowing drain caused by clogged plumbing. DeFelice contacted a plumber, who discovered mold while working in the house. DeFelice notified his homeowners insurer, Federated National Insurance Company, of the water damage and the plumber’s discovery of mold in the house.

At the request of Federated, ECS, a mold remediation and mitigation company, evaluated the damage to DeFelice’s house on June 22, 2016. On that same day, a mold inspector from Knight Building Services, LLC, came to the property and collected samples to test for mold. Knight issued a report of its findings the next day, June 23, 2016.

In its report, Knight indicated that it completed a visual, physical, and indoor environmental quality evaluation of the property and that “[t]he results of this investigation indicate that professional remediation may be necessary at this time.” The report indicated that there was mold contamination from failed plumbing at the location of a bathroom toilet and confirmed microbial growth at a kitchen cabinet. More specifically, the report indicated that concern should arise at “MODERATE” levels; that “LOW” levels of aspergillus/penicillium and total fungi were found; and that surface swabs collected at visible microbial growth showed a “HIGH” level of aspergillus/penicillium mold spores “growing opportunistically” in a water-damaged base cabinet in the kitchen. The report noted that while airborne levels of aspergillus/penicillium were not present at levels of concern, “the current site conditions present may indicate a larger hidden mold reservoir, concluding possible unobserved suspect amplification or air-borne indoor air quality issues are present.”

The report recommended that the issues it had identified be addressed to minimize future problems and that “personnel trained in the handling of hazardous materials or a Licensed Mold Remediation Contractor be contacted to discuss the proper protocol for removing and treating affected materials and evaluating any further damage.” In a section of the report titled “Building & Health,” Knight indicated that “[t]he presence of certain mold and mold spores in buildings and housing can result in mild to severe health effects in humans and can deteriorate the structure of the dwelling resulting in content or structural damage.”

After receiving the Knight report, DeFelice and Hondroulis continued to live in the house. On August 16, 2016, Hondroulis gave birth to a son, Pascal. Shortly after his birth, Pascal developed breathing issues, which his doctors initially were unable to diagnose. On December 23, 2016, Pascal’s pediatrician diagnosed him with bronchiolitis. DeFelice and Hondroulis contended that it was not until Pascal’s diagnosis that they first began to suspect that the mold in the house was not “safe” and may have caused his health issues. They vacated the premises on January 1, 2017.

On July 24, 2017, DeFelice and Hondroulis filed suit against Federated, ECS, and Knight, and they filed a first amended petition on August 10, 2017, setting forth several claims. Their claims against ECS included negligence, intentional or negligent misrepresentation, detrimental reliance, and unfair trade practices. DeFelice and Hondroulis alleged that when ECS visited and evaluated the property, a representative of ECS orally assured DeFelice that the house was “safe” to occupy. They claimed that they suffered “damage to person and property” because of their reliance on ECS’s misrepresentation. They also asserted that ECS was liable for damages for unfair trade practices and for “mental anguish as a result of the property damage.” DeFelice and Hondroulis sought to recover for property damage, loss of property value, loss of use of property, mental anguish, emotional distress, and “other damages which will be shown at trial.”

On November 9, 2017, ECS filed a peremptory exception of prescription. After a hearing on March 5, 2018, the court granted the exception and dismissed DeFelice and Hondroulis’s claims against ECS. The court found that the claims were prescribed because prescription began to run on June 23, 2016, when DeFelice and Hondroulis received the Knight report, and they did not file suit until more than one year later on July 24, 2017. The court noted that the Knight report warned of the health ramifications of remaining in a house with mold and recommended that DeFelice retain a professional licensed contractor to perform mold remediation. The court also noted that in his testimony at the hearing on the exception of prescription, DeFelice acknowledged that the Knight report alerted him to the presence of mold in the house and that some damage in the house was “too severe to salvage.” DeFelice and Hondroulis appealed.

On appeal, DeFelice and Hondroulis contended that the trial court erred by granting ECS’s exception of prescription. They argued that the court incorrectly found that the prescriptive period began to run when they received the Knight report on June 23, 2016. They asserted that prescription should have begun to accrue when Pascal was diagnosed with bronchiolitis in December 2016 or at the earliest when Pascal began exhibiting symptoms of mold exposure after he was born in August 2016.

The appellate court noted that the trial court found that prescription began to run on June 23, 2016, as to all of DeFelice and Hondroulis’s claims, including DeFelice’s claims on behalf of Pascal and the individual claims of DeFelice and Hondroulis. Given the applicable law, the court found it necessary to consider the prescription issue separately as to the claims on behalf of Pascal, the individual claims of DeFelice and Hondroulis related to Pascal’s health issues, and the individual claims of DeFelice and Hondroulis that were not related to Pascal’s health.

The court found that the claims filed by DeFelice on Pascal’s behalf did not begin to accrue before Pascal was born in August 2016; rather they began to accrue at some point after his birth. Therefore, because DeFelice and Hondroulis’s lawsuit was filed on July 24, 2017, within one year of Pascal’s birth, the claims filed on behalf of Pascal were timely. Accordingly, the court reversed the trial court’s judgment granting ECS’s exception of prescription as to the claims filed on Pascal’s behalf.

The court also reversed the trial court’s judgment granting ECS’s exception of prescription as to any of the individual claims of DeFelice and Hondroulis that arose from Pascal’s health issues caused by mold exposure. Citing case law, the court held that prescription on any of these individual claims commenced at the same time as the claims filed on Pascal’s behalf.

With respect to DeFelice and Hondroulis’s individual claims unrelated to Pascal’s health, the court pointed out that the Knight report was more than sufficient to give a reasonable person actual or constructive knowledge that potential health risks existed if he or she remained in the house and did not undertake professional mold remediation. Despite having this information, the court said, DeFelice and Hondroulis chose to remain in the house. Accordingly, the court found that their individual personal or property claims unrelated to Pascal’s health issues did prescribe prior to the date they filed their lawsuit. Thus, the court affirmed the trial court’s judgment granting ECS’s exception of prescription as to any of these claims.

DeFelice v. Federated National Insurance Company-Court of Appeals of Louisiana, Fifth Circuit-July 9, 2019-No. 18-CA-374.

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