Water Damage To Home

Fort Worth attorneys who handle water damage claims want to keep up with cases decided by juries through out the state of Texas. A recent case from the Houston Court of Appeals (14th Dist.) is worth reading. The style of the case is, Khan v. Safeco Surplus Lines. Here is some of the relevant information from the case.
In late August 2002, the Khans returned home from a multiple-week family vacation and discovered “[w]ater . . . everywhere in the house” as if there was “no roof on the home.” On August 26, 2002, Khan reported the matter to Safeco. According to Khan, the water in the Property came from a single air conditioning pan leak in the attic.
Safeco assigned the claim to Crawford for adjustment and investigation. Crawford opened a file and appointed an adjustor to handle it. By September 13, Safeco had opened ten claims on the Property. The adjustor contacted a plumbing company to investigate possible leaks and engineer Gary Whightsil to investigate the loss. Whightsil had extensive investigative experience; he had investigated nearly 250 water- and mold-damaged houses prior to examining the Property. Whightsil inspected the Property on September 19. His investigation revealed numerous sources of water intrusion beyond the air conditioning pan leak.
Whightsil also discovered the presence of mold in several locations in the Property and performed testing to determine the type and level of contamination. A microbiologist, Abdolreza Marvdashti, reviewed Whightsil’s report and the results of the mold testing and made changes to the report. Whightsil’s report indicated that the mold contamination was such that evacuation of the Property was recommended. Whightsil developed a protocol detailing areas of the Property to be remediated based on his investigation and report. After several requests for the report, Khan was given a copy of it in late October. The Khans moved out of the house in early November 2002.
At some point during Crawford’s investigation of these multiple claims, Khan became upset with the handling of the claims. He began collecting information on mold remediation and reconstruction. Based on the Whightsil protocol report, Crawford obtained an estimate from Belfor Construction to perform the remediation. Belfor provided an estimate of approximately $80,000 to remediate and build-back the Property. Khan informed Crawford that he had obtained estimates for remediation from other contractors that were much higher, but he refused to provide them to Crawford. Crawford made the decision to pay the claims to Option One and close them out in December 2002.
On August 26, 2003, the Khans filed suit against Safeco and Crawford for violations of the DTPA and the Texas Insurance Code, common law fraud, and breach of contract in Harris County.
As the case was pending, the Property continued to deteriorate. The home was damaged by a tornado in October 2003; the Khans received insurance proceeds for roof repair and mold remediation. Although they repaired the roof, they did not use the money to make any repairs on the interior of the house or remediate any mold from this loss. Two hurricanes hit the area during the pendency of the suit. No one was living in the home, and it continued to be vacant throughout trial. The case was called for a jury trial on the Khans’ tenth amended petition in August 2012 against Safeco, Crawford, and Whightsil.
At trial, the jury heard evidence concerning the defendants’ handling of the August 26, 2002 claims, including reviewing the above-described settlement demand submitted by the Khans and Safeco’s letter denying it. Khan was the only person from his family to testify concerning the damage to the Property. Pertinently, Marvdashti testified via video-taped deposition that his disagreements with Whightsil’s report were “mere difference[s] of opinion” and were not evidence of deception. Marvdashti stated that the manner in which Whightsil conducted his testing fell within the norm of the industry. He further stated, “Based on what I read from Mr. Whightsil’s investigation and interview, his conclusions and his analysis, I think I established the fact that there were multiple occurrences of water damage that dated back several years prior – – prior to his investigation, the date of his investigation.” Marvdashti stated that there would have been a need for mold remediation even if the air conditioning pan leak that occurred on August 26, 2002, had not occurred–i.e., there was already mold present in the house when the leak occurred.
The Khans’ microbiology expert, Paula Vance, opined that the summary report prepared by Whightsil regarding the levels of mold found in the Property was inconsistent with the lab results upon which it was based. She also testified that “back in 2001, there were engineers and industrial hygienists that wrote these kinds of remediation reports, but usually with the help or interpretation of a microbiologist.” She further stated that she did not believe the protocol contained in Whightsil’s report would have been “adequate to remediate the house.” Working with a remediation specialist, Vance developed her own remediation protocol. She acknowledged that, when she saw the house in 2005, the visible amount of damage was “probably almost the same, but when you take samples you know that the destruction has gone further. Wherever the water damage was the organisms started to grow, and they continued to grow there because they weren’t remediated.” She further admitted that she based her own remediation protocol on the leaks identified by Whightsil in his report. She further acknowledged that she had not seen the Property in 2002 and that she had not seen it after Khan had filed another claim for water damage in 2003.
After much discussion and analysis by this appeals court, they affirmed the jury verdict.