Confidential
Settlement – $600,000Mediator
Court
Santa Clara Superior
Attorneys
Plaintiff
Anthony Marsh
(Law Office of Anthony Marsh)
Defendant
Experts
Plaintiff
Mike Kern
(technical)
Marty Raye
(technical)
Jeffrey Beam
(technical)
Defendant
Daniel Dyckman
(technical)
Richard Walter
(technical)
Facts
Between 1984 to 1986, a tract of 95 single-family residences was built in a subdivision in Milpitas by the defendant developer/general contractor. Originally, six property owners filed separate lawsuits alleging several minor issues of defective construction of the capillary break underneath the slabs of their homes. Their cases were subsequently consolidated. In May 1995, Justice Harry S. Brauer, retired, sitting by special assignment, granted the plaintiffs' petition to certify a class action on the issue of the defective construction of the capillary break. The plaintiffs alleged that in some of the houses, small bubbles developed in the linoleum floors and the linoleum split at the seams. The plaintiffs also alleged that some houses had hardwood floors, many of which became warped and curled and separated from the floor. The houses were constructed using three different subcontractors and two different concrete slab designs. The plaintiffs brought this action against the developer/general contractor based on negligence, breach of warranty and strict liability theories of recovery. The defendant cross-complained for indemnity against the soil engineer and the concrete sub-contractors.
Settlement Discussions
The settlement discussions were not disclosed.
Damages
The plaintiffs sought $840,000 in cost-of-repair damages, plus $505,000 in general damages.
Other Information
The settlement was reached approximately two years and two months after the case was filed. SETTLEMENT CONFERENCE: Multiple settlement conferences were held before John Griffiths acting as a special master from June 1995 through September 1996. The plaintiffs' attorney's fees and costs were deducted from the total settlement of $600,000. The settlement was approved by the Superior Court and each class member has received his proportionate share of settlement funds. According to the plaintiffs, it is exceedingly rare to have a class action certified in a defective construction case involving single-family houses where there is no homeowners association or common area of property. Before certification, the defendant had contended that each house was unique. The plaintiffs demonstrated to the court that the design and construction of the capillary break for each house was the same even though the houses were constructed over a two-year time period utilizing three different sub-contractors and two different concrete slab designs.
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