Under Florida law, a consumer who has bought a home that contains toxic Chinese drywall has the right to bring a claim and/or lawsuit based on various legal theories against any company that manufactured, distributed, supplied and or used toxic drywall. This includes the builder of the home who used toxic drywall during the construction process.
Some of the various legal theories that can used to fight on behalf of homeowners include:
- Strict Product Liability
- Negligence and Negligence Per Se
- Breach of Warranty – both express and implied
- Fraudulent Misrepresentation
- Fraudulent Concealment
- Violation of Fla. Deceptive and Unfair Practices Act
Basically, the homeowner must prove that the toxic drywall has caused a defective condition within the home. To prove that the drywall has created a defective condition, the law firm of Roberts & Durkee utilizes the services of respected toxicologists to test the home utilizing industry accepted standards and guidelines. These tests have revealed abnormal and unhealthy levels of various chemicals that are being emitted from the drywall. Also, our firm documents the various problems that this toxic product causes within the home. For example, air conditioning coils failing, copper ground wires turning black, appliances failing, lights failing, computers failing, etc.
When the firm can prove that the product is defective and that this product has caused a toxic environment, Roberts & Durkee then collects evidence to prove the client’s damages. Under Florida law, the damages that can be awarded to victims of this toxic, defective product are fairly substantial and attempt to make the client whole. The homeowner is entitled to the cost to repair the home completely; additional living expense for when the homeowner is living outside the home during the repair; loss of use of the home for when the home is uninhabitable; loss of market value of the home due to the home being labeled “toxic;’ moving expenses; storage expenses; the cost to properly dispose of this toxic waste, and various other miscellaneous damages.
Many homeowners have asked whether homeowners insurance covers for this loss. Roberts & Durkee suggests that a claim be filed for this defective condition. We also recommend that if your claim is denied by your homeowners insurance company that you obtain a written denial. However, based on our review of numerous homeowners’ insurance policies, there does not appear to be coverage for this loss under most homeowners’ insurance policies.
Many homeowners have asked whether they can proceed with litigation if their builder is bankrupt. If a builder is bankrupt, then the homeowner can still proceed against the builder under certain circumstances. If the bankruptcy of the builder does present a complete bar to recovery for the homeowner, then the homeowner can still proceed against any other entity that manufactured, distributed or supplied the toxic drywall. Therefore, a homeowner who has been a victim of toxic Chinese drywall should still seek to enforce his or her rights – even if the builder is bankrupt.
Many homeowners have asked me about whether they should be involved in a class action. Throughout the state of Florida and the country, attorneys have filed class actions revolving around toxic Chinese drywall. Recently, all of these class actions were consolidated in a Federal Court in New Orleans. Our firm does not believe that a class action is the best way to enforce victims’ rights in this matter. The simple fact that most pre-trial issues will be decided in a Federal Court that is located in New Orleans is reason enough to avoid a class action. Also, in most class actions, a standardized method of computing damages will eventually be established. Our firm believes that individual actions filed in state court are the most advantageous to homeowners. In these actions, every home is tested and every homeowner’s damages are computed individually. Also, these cases are in State court where local judges and jurors made up of members of the immediate community decide the disputed issues of law and fact.