Confidential
Settlement – $380,000Judge
Court
Alameda Superior
Attorneys
Plaintiff
Anthony Marsh
(Law Office of Anthony Marsh)
Defendant
Maria A. Caruana
(Law Offices of John A. Biard)
Experts
Plaintiff
Louis Richardson
(technical)
Jerry Guss
(technical)
William Cotton
(technical)
Patrick O. Shires
(technical)
Defendant
Daniel Dyckman
(technical)
Joseph Michelucci
(technical)
Ronald J. Perisho
(technical)
Richard Walter
(technical)
Wayne Ferree
(technical)
Curtis Jensen
(technical)
Facts
In 1989, the plaintiff homeowners purchased hillside property in Fremont above Highway 680 from the defendant sellers. The defendant neighbors are the plaintiffs' next door neighbors. The homeowners own the entire hillside below both the defendant neighbors and their own house down to Interstate 680. In January 1993, various landslides occurred on the hillside. The plaintiff homeowners performed minor drainage repairs and investigated through their insurance carrier. From January through March 1996, the entire hillside slid again, causing damage to the neighboring properties. The plaintiffs claimed that a retaining wall on the defendant neighbors' property was undermined and threatened and that the slide buried a drainage system for Interstate 680 at the bottom of the hill and threatened the stability of the freeway, forcing the defendant transportation department to perform emergency repairs in April 1996. The plaintiffs claimed that when they purchased their property, the only disclosure provided them by the defendant sellers and their real estate agent was that extensive drainage had been installed on the hillside because of erosion. The plaintiffs claimed that investigation by the plaintiffs' attorney and engineers discovered this to be completely untrue. The defendant sellers contended that they made an unequivocal disclosure of soil slippage and landslides on a real estate transfer disclosure form given to the buyers. The plaintiffs claimed that considerable sliding had occurred in 1983, which was corrected by regrading and then reoccurred in 1986. The plaintiffs claimed that geologic reports had been prepared in 1984 and 1986, with a recommendation of complete hillside repair. The plaintiffs contended that the defendant sellers and the defendant neighbors engaged the defendant contractor to perform a regrading repair in January 1987. The plaintiffs claimed the repair was done without permits or engineering oversight. The entire hillside was regraded and surface drainage installed. In December 1987, another slide occurred, starting on property owned by the defendant transportation department to the north. This slide was eventually repaired at the end of 1988. The plaintiffs contended that the real estate agent was aware of this slide, as it was readily visible from the Interstate 680 freeway. The plaintiffs also contended that the entire hillside was smoothed over and they were unaware of the history of sliding when they purchased the property. The defendant sellers contended that the plaintiffs knew of the slides on the surrounding property and on the subject property. The plaintiffs brought this action against the defendants based on negligence, fraudulent concealment and breach of contract theories of recovery. The defendant neighbors filed a cross-complaint against the plaintiff homeowners for negligence and nuisance. The defendant sellers cross-complained against the defendant neighbors and defendant contractor and others.
Settlement Discussions
The plaintiffs made a settlement demand of $400,000.
Damages
The plaintiffs claimed cost-of-repairs damages of $296,000 for the contractor plus approximately $50,000 in engineering fees.
Other Information
The settlement was reached approximately four months after the case was filed. MEDIATIONS: Mediations were held between June 3, 1996 and Aug. 22, 1996 before Gordon McClintock resulting in the reported settlement. There were numerous insurance coverage disputes. The defendant sellers' insurance carriers contended that there was no coverage under any legal theory. Per the plaintiff, settlement was made difficult because of the refusal of the defendant sellers' insurance carriers to participate in settlement discussions due to exclusions within the sellers' policies. The parties asserted that there was no coverage under the plaintiffs' policies to repair the hillside. The parties engaged in no discovery. Instead, presentations were made through the geotechnical engineers and geologists to all parties. Extensive settlement negotiations took place. The case settled at the end of August 1996. The hillside repairs have been completed.
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