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But at the SCAHACC Mock Trial, it was the defending lawyer’s skillful emphasis on the homeowner’s responsibility that persuaded the mock jury to reach its “not guilty” verdict, according to education coordinator Jim Herritage. This points out that in an actual courtroom (or even in the Westin Francis Marion ballroom), many factors can affect the outcome.
The SCAHACC verdict will probably disappoint some News readers, many of whom expressed outrage at the contractor’s negligence. Others, however, acknowledged the homeowner’s culpability.
What follows are highlights of News reader responses. Complete responses can be seen online in the feature story "Web Exclusive: Mold Trial Survey Results And Comments" in this March 25, 2002 issue.
GUILTY“Any contractor should know by now to look for mold,” stated Andy Morehead, service manager, Continental Mechanical, Honolulu, HI. “Replacing all of the ductwork because of mold adds a lot of money to the bottom line but, more importantly,
it shows concerns for the welfare of your fellow man.”
“As an hvacr instructor, I hate to hear the argument that ‘That’s the way its always been done,’” wrote Michael Chandlee, hvacr instructor, Tennessee Technology Center at Pulaski, Pulaski, TN, of XYZ’s excuse of changing a “like for like” a/c system. “Experience is not an indicator of expertise.”
“XYZ saw the problem and then continued to let the problem increase,” wrote J.J. Smolen, Birmingham, MI. “They did not clean and then seal the system properly. They did not size the system correctly, and they expanded the problem by increasing the cfm and putting in the high-static filter. Guilty as charged.”
“If he doesn’t have the information [on mold problems], he should have called a mold remediation company to help solve the problem,” said Ron Getzschman, residential manager, Getzschman/ Service Experts, Fremont, NE. “As soon as he tried to solve the problem, and was paid for his service and didn’t get the problem solved, he then became responsible for the whole situation.”
Many contractors were critical of the contractor for not running heat gain calculations. “There’s no excuse for not performing a heat gain study,” said John Gates, owner, JCG Burner Service, Maynard, MA.
“Every good contractor should take the time to perform a Manual J no matter what — even more so when the homeowners have performed major home improvements like insulation and/or siding,” said Anthony McMurdo, technical outside sales, Johnstone Supply, Akron, OH.
“XYZ Co. sounds like an average company, not paying attention to the details,” said Gerald Reilly, president, Maitland Air & Electric Co., Garfield, NJ. “They didn’t fix the return problem when they knew it existed. XYZ could have come back to the customer after the fact, explaining the return problem, replacing the ductwork at extra cost. I think many companies in our industry have found themselves in similar situations. We are the experts in this business and we can do the work correctly, charge accordingly, or we can go the way of XYZ Co., paying for your mistakes and getting a bad reputation.”
“It is the responsibility of XYZ or any hvac company to inform the homeowner of any potential problems, and when these problems are not corrected properly, we are at fault,” wrote John Trecker, president, Aaron & Trecker Heating & Cooling Inc., Wheeling, IL.
“XYZ hvac did not fix the leak in the return air duct, though they were paid for that service. This contributed to the daughter’s illness,” pointed out Logan L. Cravens, director of Green Building Services, SERA Architects, Inc., Portland, OR. “The evaporator blower was set at the wrong speed. A responsibility of the installer is to provide a system that works as intended. They could have checked it the second time around. Contributory negligence on the part of the owner does not release XYZ from their professional and contractual responsibilities.”
Finally, “As a homeowner, I rely on the ‘experts’ for an accurate appraisal and quality work, whatever it is that’s being done,” wrote John J. Williams, Long Valley, NJ. “This contractor took the easy way out by installing the same-size system and in a haphazard manner, at that. I’m reminded of a similar situation, in which three contractors quoted me for three different-size units from the same oem (3-, 4-, and 5-ton) system for a new, whole-house a/c system. Who are we supposed to believe?”
Many online participants who voted guilty could see the homeowner’s role in the eventual outcome. He took the low bid and wound up paying much, much more in doctor bills, system repair, and mold remediation.
“The owner didn’t do his homework when warned of problems when he bought the home,” wrote Skip Schembari, president, HVAC Performance Products, Inc., Pasadena, CA. “They’re both guilty, but the contractor is an ‘hvac expert’ and should have had a heads up. No fine [for XYZ], but probation and community service. Take IAQ classes and speak to groups about IAQ.”
“Homeowners contributed and are also somewhat responsible,” said Dennis Klingele, Yakima, WA. “I suggest that even if XYZ had done everything correctly that the ‘existing’ mold problem would still have continued and the daughter’s health problems may still have been evident. I would award only 25% or less of the amount requested.”
“Both the contractor and the owner are guilty and share the responsibility,” said C. Sain, San Angelo, TX. “The contractor should have done a load calculation and the owner should not have bought the house without having the moisture problems fixed.”
“Unfortunately, ignorance of the situation does not excuse him [the homeowner] of some fault,” stated David Kunetka, president, DD Mechanical Services, Katy, TX. “Yet when XYZ came into the home to replace the system, they are the experts in both the public eye and the homeowners’ eyes. To not explain to the customer fully the condition of the home and what would happen if the system was not properly sized, even if you lost the job, would prove negligence on the part of XYZ.”
“I think $1 million is too much of a penalty for the hvac contractor,” said Greg Etheridge, Charlotte, NC. “XYZ should install or pay for someone else to install a properly sized system, as well as to replace the moldy ductwork. Also, all doctors’ bills should be reimbursed, but that’s it; no pain and suffering for the family. The homeowner was aware of the mold and ductwork problems but was not discriminating enough.”
“I hate to give a guilty vote, especially when the owner opted for the low bid,” wrote Grant D. Bowman, vice president, Bowman S/M Htg. & A/C, Buffalo, MN. “He [Mr. Johnson] was given the information from the first contractor, that the size and the ductwork had problems. He could have done more homework on his own, and he aggravated the problems by sealing up the house and making it tighter.”
NOT GUILTYFinally, there is that minority of online participants who, while criticizing XYZ’s practices, placed the blame squarely on the homeowner’s shoulders.
“The only thing [XYZ owner] Mr. Jones is guilty of is not being very good at what he chooses to do for a living,” stated L.D. Thomas, project manager, Peoria, IL. “I believe a lot of the responsibility is the homeowner’s, and, as always, let the buyer beware — even of himself.”
“The homeowner knew the problem when he bought the house,” wrote Laureen Coleman, Norwich, NY. “Everyone wants to find a scapegoat these days and then sue the pants off them. Why don’t we start taking responsibility for ourselves and stop blaming others.” “The Johnsons should have been more educated about mold and its complications from their doctors,” said Wilfredo N. Jose, president, Aircool Mechanical System, Inc., Miami, FL. “The Johnsons should have demanded removal and neutralization of the ductwork for the mold. It is up to the Johnsons to make the right decision about their home. They chose to spend less money for the problem.”
“The mold and wet crawl space were pre-existing conditions in the residence, and even if the contractor had cleaned and sealed the duct, and correctly sized the a/c, there is no guarantee it would have removed the mold,” pointed out Louis Stately, president, Urbana Aired, Inc., Iamsville, MD.
“The homeowner was fully aware of an existing moisture problem under his house,” stated James Cherry, a/c supervisor, Old Dominion University, Norfolk, VA. “He was also informed of the duct irregularity with mold being noted. When given the choice of a free patch job vs. having to pay $400 more to properly correct the problem, he chose to try to get something for free.”
“People seem to take the lower price in this bargain-based world,” said Mike Burns, operations manager, Weinkauf P&H, Alpena, MI. “I have a hard time feeling sorry for them when they get what they pay for and are left holding the bag. ‘Let the buyer beware’ is still true.”
For a complete transcript of comments from the participants in our online poll, see the online feature story "Web Exclusive: Mold Trial Survey Results And Comments" in this March 25, 2002 issue.
Publication date: 03/25/2002