Couple site moldy home, fraud in suit vs. developer
Alexander Kaplan and his wife, Denise, are suing DiVosta Homes and VillageWalk of Bonita Springs Homeowners Association over numerous problems associated with a four-bedroom home on Scrub Jay Lane that they closed on in April 2006, but have never lived in due to the problems...Attorneys Christopher Burrows and Scott Grant, who represent DiVosta, referred calls to Beth Cocchiarella, a spokeswoman for DiVosta’s parent company Pulte Homes... A 2003 report by New York-based Insurance Information Institute estimated that more than 10,000 mold-related injury lawsuits were pending nationwide that year, a 300 percent increase since 1999.

Couple site moldy home, fraud in suit vs. developer

By Aisling Swift
Friday, March 2, 2007

Two Naples lawyers are suing a local homebuilder, alleging deceptive sales practices, fraud and mold in their $606,032 Bonita Springs home that caused respiratory distress and pneumonia.

Alexander Kaplan and his wife, Denise, are suing DiVosta Homes and VillageWalk of Bonita Springs Homeowners Association over numerous problems associated with a four-bedroom home on Scrub Jay Lane that they closed on in April 2006, but have never lived in due to the problems. Kaplan said the problems developed while he was moving their furniture and possessions into the home.

Their lawsuits seeks $606,000, roughly the cost of the home built by DiVosta Homes Inc. DiVosta also is a developer for Ave Maria in Immokalee.

The lawsuit originally was filed in Lee County Circuit Court, but was transferred in November to U.S. District Court by DiVosta Homes, which successfully argued the civil rights claim exceeded the minimum $75,000 threshold for federal jurisdiction and involved parties in two states.

Attorneys Christopher Burrows and Scott Grant, who represent DiVosta, referred calls to Beth Cocchiarella, a spokeswoman for DiVosta’s parent company Pulte Homes. She said she couldn’t comment on pending litigation.

DiVosta’s motion to dismiss says the contract outlined restrictions and potential problems the Kaplans should have known about and says bylaws provided to the Kaplans show that dispute resolution must go through arbitration. The motion points out that construction site dangers, mold and other allegations in their lawsuit are among issues the Kaplans acknowledged in their contract, agreeing to hold the seller harmless.

On Feb. 16, the Kaplans filed an amended complaint, adding a fourth cause of action involving a sewage backup in their home just after their closing last April that they say flooded the bathrooms, overflowed into the master bedroom, and caused Alex Kaplan to suffer respiratory distress that developed into pneumonia.

“The mold was the last nail in the coffin,” Alex Kaplan said Tuesday, adding that DiVosta management told him the sewage problem was due to construction workers flushing paper towels.

“Tests showed high levels of mold and they recommended that I not return to the house and that no one live in the house.”

Mold lawsuits are on the rise, according to construction and legal publications. Building magazine points to a 2001 $32 million Texas mold verdict against an insurer — later reduced to $4 million — that prompted an “avalanche of litigation” and “fear-based settlements.” The magazine reported that U.S. insurers paid $1.3 billion in mold-related claims in 2001 and more than $3 billion the next year.

A 2003 report by New York-based Insurance Information Institute estimated that more than 10,000 mold-related injury lawsuits were pending nationwide that year, a 300 percent increase since 1999.

The Kaplans allege that when the sewage backed up, DiVosta’s service department couldn’t provide assistance for two days and when employees arrived, they lifted the carpets and put fans and blowers underneath to dry them out. Only after the Kaplans argued with DiVosta, the lawsuit says, did they agree to replace the carpets.

“But because they weren’t removed right away, the water seeped into the floors and walls,” said Kaplan, adding that his cough developed into wheezing and pneumonia.

They hired an Estero company, Clean Air Inspections, whose tests found high mold spore counts. Potable water also was tested due to a film and red marks in their sinks and toilets and showed insufficient chlorine levels, according to the reports filed with their lawsuit. The Kaplans also claim DiVosta scammed homeowners by holding a lottery for homes due to an alleged “high demand” that grossly inflating prices.

The lawsuit also alleges that the Kaplans were told before sale that they could build a fence concealed by shrubbery on the side of their home for privacy and their dogs, as they did at IslandWalk, a DiVosta development they currently live in. The same architectural review board that approved a fence around their current three-bedroom home denied a fence for their new home, saying it would make VillageWalk “look like a compound.” They allege disparate and unequal treatment.

The Kaplans also claim Bonita Beach Road, which leads to the development, is unsafe due to speeding construction vehicles entering and exiting, forcing cars off the road.

http://www.naplesnews.com/news/2007/mar/02/couple_site_moldy_home_fraud_suit_vs_developer/?local_news