Mock Mold Trial Has Surprising Outcome

CHARLESTON, SC — Before we give you the jury’s results, here is a brief recapitulation of the mock trial detailed at length in the March 4 issue of The News (“Ladies And Gentlemen of the Jury,” page 1). The mock trial was held during the annual meeting of the South Carolina Association of Heating and Air Conditioning Contractors (SCAHACC).

The Johnsons, a fictional family, moved into a home they bought in 1998; that same year, they performed several efficiency upgrades and later had to replace the heat pump. After getting a few bids, they chose XYZ HVAC Services to perform the work. The contractor put in a unit the same size as the old one and repaired the ductwork with duct tape. After the work was completed, the family’s daughter, Tricia, developed mold allergies and eventually was diagnosed with asthma, which culminated in a trip to the hospital.

Distraught, Mr. Johnson contacted the XYZ owner, Mr. Jones, who suggested that problems related to the home’s moisture existed when the Johnsons bought the home. Then Mr. Johnson called out a mechanical engineer to evaluate the hvac system’s problems. Eventually Mr. Johnson sued Mr. Jones for $1 million.

Now let’s go back into this fictional courtroom to see the jury’s decision.

THE JURY’S FINDINGS

“Under the specific circumstances presented in this case,” wrote the jury, “we, the jury of this trial, found that due to the comparative negligence of both parties, the defendant was found not guilty. However, both parties were culpable due to these same negligent actions or inactions and more so, on the part of the defendant.

“In other words, there was responsibility on the part of the contractor (Mr. Jones) that would, under many circumstances, render him liable for at least some of the problems encountered by the plaintiff. Had the plaintiff called in another contractor and/or engineer at an earlier date and further scrutinized the repair-replacement work done by the defendant, then the defendant and/or his business would almost assuredly have been found guilty and liable for the problems encountered in the plaintiff’s house.”

The “not guilty” verdict was something of a surprise, said SCAHACC education coordinator Jim Herritage. However, the trial shows how variable courtroom proceedings are, and how a verdict one way or another can hang by a thread.

“The defendant did a great job of building a case that the plaintiff didn’t do a good job of following up,” Herritage said. The attorney was able to convince the jury that the homeowner had equal culpability. As a result, they let the contractor off — this time.

Herritage said that the trial made a few things clear:

Contractors need to run residential load calculations more often. At the very least, contractors need to be aware enough to ask certain questions about the entire home, not just the hvac system, to see if a load calculation is called for.

While hvac contractors don’t need to be mold experts, they do need to know that moisture and other conditions associated with the hvac system can exacerbate mold problems.

“Contractors really need to get better at having proper protective verbiage on paperwork,” said Herritage. “Home inspectors have made themselves bulletproof” by including clauses on their paperwork that limit their liability.

Statements should indicate that the contractor is responsible for repairs made to the heating-cooling equipment, but not for any IAQ problems, including mold growth.

“We’ve got to take mold much more seriously,” said Herritage. Larger contracting companies with deeper pockets have to worry especially, he continued. If a homeowner’s attorney sees that a contractor doesn’t have enough assets to go after, the attorney might not take the case. “Billy Bugtussle” is probably safe from this type of litigation, Herritage said.

“The time has come to not only do the job right,” he said, “but to document that it was done right, for the protection of both the customer and the contractor.”

This mock mold trial was produced by SCAHACC at its 2002 Annual Meeting. The general purpose of the association is “to elevate the levels of competence, professionalism, and success of businesses and their employees that operate within the heating and air conditioning industry in South Carolina, to the benefit of the consumer.” The group can be contacted at 800-395-9276; schvac@associationsplus.com (e-mail).

Publication date: 03/25/2002

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