Anthony Boccignone, Shannan Roden v. Home Depot, Pacific Southwest Flooring
Published: May 18, 2004 | Result Date: Apr. 12, 2004 | Filing Date: Jan. 1, 1900 |Case number: 03CL02297 Verdict – $12,519
Judge
Court
Orange Superior
Attorneys
Plaintiff
Defendant
Kevin J. Gramling
(Klinedinst PC)
Experts
Plaintiff
Lawrence Otsubo
(technical)
Roger Beers
(technical)
John Heigl
(technical)
Steve Nordquist
(technical)
Defendant
Kurt Grosz
(technical)
Facts
On Sep. 3, 2000, the plaintiffs, husband and wife, entered into a contract with Home Depot for the purchase and installation of Pergo flooring in their 33-year-old home in Santa Ana. The plaintiffs paid $5,143. Home Depot had its contractor, Pacific Southwest Flooring, perform the installation of the floor. In order to properly install such a floor, the installer must first perform testing to determine whether the concrete slab has excessive moisture. Even if the moisture levels are acceptable, proper installation requires the placement of a moisture barrier (6 mm polyethylene) between the concrete slab and the floor. In February 2002, the plaintiffs noted that the Pergo floor was warping at the thresholds (the areas where one room joins another). They called Home Depot and a representative of the installer, Pacific Southwest, was sent out to inspect. He confirmed the warping, but blamed the problem on plumbing leaks. The plaintiffs hired leak detection services and flooring experts, at a cost of $1,900, who determined that there were no leaks and that the problem was improper installation. Testing showed that the moisture levels exceeded the Pergo specifications. It was also found that the moisture barrier had been cut several inches short of the thresholds, leaving bare concrete under the floor. The Pergo company sent a representative out to inspect and he confirmed these findings in a memo to Home Depot. The plaintiffs' homeowner's insurer sent out an expert who also confirmed these findings and opined in his written report that the high moisture content of the concrete slab had pre-existed the installation of the floor and that he doubted that the slab had been properly tested by Pacific Southwest. Despite being presented with such evidence, Home Depot took no action. When Home Depot faxed the results of moisture testing to the Pergo Company, Pergo responded by voiding their warranty. In late 2002, the plaintiffs began removing the Pergo floor, only to find that the moisture barrier had been cut 3-6 inches short of the walls in all the rooms of the house. The plaintiffs paid to have the slab sealed with an epoxy, and they installed a new hardwood floor themselves. During trial, the owner of Pacific Southwest admitted that he trained his employees to deviate from the Pergo requirements. They did not perform the recommended calcium chloride test; they did not use the Pergo transition pieces at the thresholds, and they routinely trimmed the moisture barrier away from the thresholds and edges of the walls to "allow the slab to breathe." According to the defendant, the plaintiffs had a bathroom plumbing leak in April 2001, after which defendants installed a new floor. When this bathroom floor failed, the defendants offered to replace the floor free of charge. The plaintiffs also had a refrigerator leak in February 2002, which was discovered by one of defendant's employees.
Settlement Discussions
The plaintiffs demanded $40,000 six weeks before trial. The plaintiff initially demanded $10,000 prior to filing the complaint; then C.C.P. Section 998 for $15,000, further raised to $30,000 on the first day of trial. The defendants' offer was initially $7,500, raised to $10,000 and then C.C.P. Section 998 for $17,500. On the first day of trial, the offer was increased to $20,000.
Damages
$16,121 for leak detection, removal and replacement of the floor, plus undetermined attorneys fees pursuant to the contract.
Other Information
The plaintiffs' motion for an award of attorneys fees and expert witness fees is pending. The plaintiffs alleged fraud and negligent misrepresentation against both defendants. The trial judge granted nonsuits as to both causes of action. The plaintiffs were also seeking punitive damages which the judge did not allow to go to the jury. The defendants' motion for an award of costs and fees pursuant to its C.C.P. Section 998 offer is pending.
Deliberation
1.5 days
Poll
9-3
Length
seven days
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