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Indianapolis
Star
Legal
battle over mold may be near settlement
By Bruce C. Smith
August
30, 2004
Two
years of legal limbo could be coming to an end for an
Indianapolis-area builder and about 2,100 homeowners worried that
mold is growing in their walls.
A
proposed settlement of a class-action lawsuit against Trinity Homes
and parent Beazer Homes estimated at $24
million has been filed in Hamilton Superior Court and scheduled for
an Oct. 18 hearing.
At
that time, a judge will decide whether to accept the settlement. An
attorney representing the homeowners said a majority of his clients
favored the deal.
Homeowners'
opinions, however, were still mixed. Supporters said it is too good
to turn down; others said it doesn't go far enough.
The
affected homes were built from 1998 to 2002 and range in price from
about $125,000 to more than $500,000 and are located throughout the
Indianapolis
metropolitan area, particularly in Boone, Hamilton, and Hendricks
counties, where Trinity has been actively building hundreds of homes
a year.
In
a 50-page proposal, Trinity/Beazer would
pay to test the potentially affected homes for moisture and mold,
fix the damage or construction defects without cost to the
homeowners and then certify the property free of mold.
At
Beazer's proposed pace of 216
inspections and remediations every six
months, the work could roughly five years.
Improperly
installed brick veneer has been blamed for much of the mold problem.
But some homes have been found with leaking roofs and incorrect
grading of soil around the foundations that contributed to moisture
seeping into walls.
Attorneys
for both sides recommend the deal as fair and one of the largest and
most generous of local class-action settlements in recent memory.
Supporters
agreed that the deal was a good way to bring closure to the two-year
legal fight.
"I
think it is terrific. It seems very fair and we're going to
participate in the process," said Rick Bomberger,
who is a plaintiff in the lawsuit by virtue of living in an affected
home.
His
five-bedroom brick Zionsville home in a Trinity subdivision of
houses worth $350,000 to $500,000 is included in the class-action
suit. Houses there haven't been checked yet for mold or moisture.
"Under
this agreement, we will get an inspection. And it will not just be
by a single inspector but by a team of inspectors," he said.
However,
some homeowners said the proposed settlement fails to fully repay
them for related expenses like fees for private attorneys and past inspections
, lost work time and wages, damage to their health from
breathing mold and the lost resale value in their property.
"I
don't think it is worth the paper it's written on," complained
Chris Bouwkamp, owner of a Trinity house
in the hard-hit Brittany Chase subdivision near Zionsville.
Trinity
bought back 50 homes, not including Bouwkamp's,
during a one-time offer early in the controversy. He said those
homes are vacant and that the lawns are neglected and beginning to
give his neighborhood a run-down appearance.
Bouwkamp
said Trinity cleaned his home but tests showed mold still present,
and children became ill within days of returning to the home.
Bouwkamp
says that the proposed settlement process appears to allow Trinity
and Beazer to inspect the homes, come up
with a plan to remove the mold if any is found and then be the judge
of whether the plan is good enough. A homeowner has to pay $225 to
appeal if he or she disagrees with the assessment.
The
lawsuit stems from mold found by Christopher J. and Mary A. Colon in
their Prairie Crossing subdivision home in Noblesville. They moved
into the house in 2001 and filed the suit in 2003.
Beazer
has acknowledged that 10 lawsuits have been filed about the mold
problem.
Attorneys
involved in a year of negotiations to reach the proposed settlement
called the pact a win-win for both the affected homeowners and for
the builders.
"We
believe this represents an outstanding result," said Richard E.
Shevitz, one of the
Indianapolis
attorneys for the homeowners.
"It
provides for their homes to be evaluated and remediated
according to specific standards, under the supervision of an
independent professional engineer, who will be an advocate for the
homeowners," Shevitz said.
The
homeowners were represented by the Cohen and Malad
and the Plew Shadley
Racher and Braun law firms in
Indianapolis
.
"We
think it is a fair settlement because it addresses the water
intrusion issues," said Trinity/Beazer
attorney Michael Rosiello.
He
stressed that not all of the 2,100 homes with potential problems
actually will be found to have water or mold damage.
A
10-page summary of the lengthy written agreement was mailed in the
past week to the 2,100 homebuyers in Trinity's records.
It
says if they want to remain a part of the settlement, they should do
nothing. If they want out of the deal or to object to it, they must
respond in writing by Sept. 27.
In
Securities and Exchange Commission filings, Beazer
said 901 written complaints about Trinity homes had been received
through June this year and the company set aside $24 million for the
repairs.
Beazer
also indicated in the filings that it may seek reimbursement through
their insurance and subcontractors' insurance.
Call
Star reporter Bruce C. Smith at (317) 444-2605.
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