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Defelice v. Federated National Insurance Co.

Court of Appeals of Louisiana, Fifth Circuit

July 9, 2019

DAVID DEFELICE, INDIVIDUALLY AND ON BEHALF OF HIS MINOR SON, PASCAL HONDROULIS, AND KATIE HONDROULIS
v.
FEDERATED NATIONAL INSURANCE COMPANY, ENVIRO-CLEAN SERVICES, INC., AND KNIGHT BUILDING INSPECTION SERVICES, L.L.C.

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 774-278, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, DAVID DEFELICE, INDIVIDUALLY AND ON BEHALF OF HIS MINOR SON, PASCAL HONDROULIS, AND KATIE HONDROULIS Galen M. Hair David P. Vicknair Sarah M. Kalis Kassie Lee Richbourg

          COUNSEL FOR DEFENDANT/APPELLEE, ENVIRO-CLEAN SERVICES, INC. Elton F. Duncan, III Kelley A. Sevin

          Panel composed of Judges Stephen J. Windhorst, Hans J. Liljeberg, and John J. Molaison, Jr.

          HANS J. LILJEBERG JUDGE

         Plaintiffs, David DeFelice, individually and on behalf of his minor son, Pascal Hondroulis, and Katie Hondroulis, appeal the trial court's judgment, granting an exception of prescription filed by defendant, Enviro-Clean Services, Inc. ("ECS"), and dismissing plaintiffs' claims against it. For the following reasons, we affirm in part, reverse in part, and remand this case to the trial court for further proceedings.

         FACTS AND PROCEDURAL HISTORY

         Mr. DeFelice is the owner of the property located at 3709 Green Acres Road in Metairie, Louisiana. He and Ms. Hondroulis were residing in the home when, on June 10, 2016, the house sustained water damage due to an overflowing drain caused by clogged plumbing. According to Mr. DeFelice, he contacted a plumber, who came to the property and discovered mold while working in the house. Mr. DeFelice contacted his homeowner's insurer, Federated National Insurance Company ("Federated"), and notified them of the water damage and the plumber's discovery of mold in the house.

         At the request of Federated, ECS, a mold remediation and mitigation company, evaluated the damage to Mr. DeFelice's house on June 22, 2016. Mr. DeFelice asserts that a representative of ECS, Charlie Barbo, verbally assured him that the house was "safe" to occupy. On that same day, a mold inspector from Knight Building Services, L.L.C. ("Knight") came to the property and collected various samples to test for mold. Knight issued a report of its findings on the following day, June 23, 2016.

         In its June 23, 2016 report, Knight indicated that it completed a visual, physical, and indoor environmental quality evaluation of the property and that "[t]he results of this investigation indicate that professional remediation may be necessary at this time." The report indicated that there was mold contamination from failed plumbing at the location of a bathroom toilet and confirmed microbial growth at a kitchen cabinet. More specifically, the report indicated that concern should arise at "MODERATE" levels; that "LOW" levels of aspergillus/penicillium and total fungi were found; and that surface swabs collected at visible microbial growth showed a "HIGH" level of aspergillus/penicillium mold spores "growing opportunistically" in a water-damaged base cabinet in the kitchen. It noted that while airborne levels of aspergillus/penicillium were not present at levels of concern, "the current site conditions present may indicate a larger hidden mold reservoir concluding possible unobserved suspect amplification or air-borne indoor air quality issues are present."

         The Knight report also recommended that the issues in the report be addressed to minimize future problems and that "personnel trained in the handling of hazardous materials or a Licensed Mold Remediation Contractor be contacted to discuss the proper protocol for removing and treating affected materials and evaluating any further damage." In a section of the report entitled, "Building & Health," Knight indicated that "[t]he presence of certain mold and mold spores in buildings and housing can result in mild to severe health effects in humans and can deteriorate the structure of the dwelling resulting in content or structural damage."

         After receiving the Knight report on June 23, 2016, Mr. DeFelice and Ms. Hondroulis continued to live in the home. On August 16, 2016, Ms. Hondroulis gave birth to a son, Pascal. Shortly after he began residing the home, Pascal developed breathing issues, which his doctors were initially unable to diagnose. On December 23, 2016, Pascal's pediatrician diagnosed him with bronchiolitis. Plaintiffs contend that it was not until Pascal's diagnosis that they first began to suspect that the mold in the house was not "safe" and may have caused his health issues. They vacated the premises on January 1, 2017.

         On July 24, 2017, Mr. DeFelice and Ms. Hondroulis filed this lawsuit against Federated, ECS, and Knight, and they filed a First Amended Petition on August 10, 2017, setting forth several claims. Their claims against ECS include claims based on negligence, intentional or negligent misrepresentation, detrimental reliance, and unfair trade practices. In their petitions, plaintiffs allege that when ECS visited and evaluated the property, a representative of ECS verbally assured Mr. DeFelice that the house was "safe" to occupy. They claim that they suffered "damage to person and property" due to their reliance on ECS's misrepresentation. They also assert that ECS is liable for damages due to unfair trade practices and for "mental anguish as a result of the property damage." Plaintiffs seek to recover for property damage, loss of property value, loss of use of property, mental anguish, emotional distress, and "other damages which will be shown at trial."

         On November 9, 2017, ECS filed a Peremptory Exception of Prescription. After a hearing on March 5, 2018, the trial court granted the exception and dismissed plaintiffs' claims against ECS. The trial court found that plaintiffs' claims against ECS were prescribed because prescription began to run on June 23, 2016, when plaintiffs received the Knight report, and they did not file suit until more than one year later on July 24, 2017. In its reasons for judgment, the trial court noted that the Knight report warned of the health ramifications of remaining in a house with mold and recommended that Mr. DeFelice retain a professional licensed contractor to perform mold remediation. The trial court also noted that in his testimony at the hearing on the exception of prescription, Mr. DeFelice acknowledged that the Knight report alerted him to the presence of mold in the house and that some damage in the house was "too severe to salvage." Plaintiffs appeal.

         LAW AND DISCUSSION

         On appeal, plaintiffs contend that the trial court manifestly erred by granting ECS's exception of prescription. They argue that the trial court incorrectly found that the prescriptive period began to run when plaintiffs received the Knight report on June 23, 2016. They assert that prescription should have begun to accrue when Pascal was diagnosed with bronchiolitis in December 2016, or at the earliest, when Pascal began exhibiting symptoms of mold exposure after he was born in August of 2016.

         The standard of review of a trial court's ruling on a peremptory exception of prescription turns on whether evidence is introduced. Wells Fargo Financial Louisiana, Inc. v. Galloway, 17-413 (La.App. 4 Cir. 11/15/17), 231 So.3d 793, 800. When no evidence is introduced, appellate courts review judgments sustaining an exception of prescription de novo, accepting the facts alleged in the petition as true. Id.Lennie v. Exxon Mobil Corporation, 17-204 (La.App. 5 Cir. 6/27/18), 251 So.3d 637, 642, writ denied, 18-1435 (La. 11/20/18), 256 So.3d 994. However, when evidence is introduced at a hearing on an exception of prescription, the trial court's findings of fact are reviewed under the manifest error standard. Id.; Tenorio v. Exxon Mobil Corp., 14-814 (La.App. 5 Cir. 4/15/15), 170 So.3d 269, 273, writ denied, 15-1145 (La. 9/18/15), 178 So.3d 149. When evidence is introduced but the case involves only the determination of a legal issue, not a dispute regarding ...


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