Bosley v. Oliphint Enters., LLC

244 So. 3d 692
CourtLouisiana Court of Appeal
DecidedSeptember 27, 2017
DocketNo. 51,585–CA
StatusPublished
Cited by3 cases

This text of 244 So. 3d 692 (Bosley v. Oliphint Enters., LLC) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bosley v. Oliphint Enters., LLC, 244 So. 3d 692 (La. Ct. App. 2017).

Opinion

MOORE, J.

*695Drs. J. Houston and Deborah K. Bosley appeal a judgment that awarded them only $29,632.28 for property damages to their home arising from the negligence of their roofing contractor, Oliphint Enterprises LLC, in allowing rainwater to get in the house, and denied their claim for a penalty and attorney fee against Oliphint's insurer, United Fire & Indemnity, for allegedly failing to adjust the claims properly. We amend in part, to increase the award for exterior painting, but otherwise affirm.

FACTUAL BACKGROUND

The Bosleys (he is an ENT, she an endocrinologist) own a home in Shreveport's Pierremont area. In 2011 they were remodeling to add an ADA-compliant wing and replace the entire roof. They bought a custom-made metal roof and hired Corey Oliphint, of Oliphint Enterprises, to install it. Because of the size of the roof and the need to work around the other construction, the roof project was intricate, taking about three months.

In late August, Oliphint had removed a large portion of the roof over the older portion ("east wing") of the house. On the afternoon of August 24, a sudden and unexpected thunderstorm blew in, the first rainfall in about three months, while this part of the roof was off. Workers struggled to cover the gap with tarps, but they did not have enough. A torrent of violent rain pounded the unprotected attic, drenching the ceilings of two bedrooms (the "green room" and the "blue room") and dampening the interior walls of those rooms, the library and the hall. Oliphint's crew set out buckets and fans to alleviate the situation, but Ms. Bosley, who was chiefly overseeing the remodel, testified that she was immediately concerned about the risk of mold growing in the wallboard and insulation.

The next day, August 25, Oliphint notified his general liability carrier, United Fire, of the incident; United Fire sent an adjuster, James Thomas, who came to the house on August 29 and saw evidence of water intrusion. Thomas testified that he prepared a repair estimate after receiving a report from Charles Martin, of Sunbelt Contractors, whom Ms. Bosley had contacted. Martin's estimate, $15,794.26, was just to gut and redo the blue and green rooms. Making an adjustment for repairing exterior soffits and fascia board, and for minor repairs to the library, Thomas figured the loss at $17,358.76; after depreciation, he wrote a net estimate of $16,648.13. The estimate was dated October 21, but he did not give it to Ms. Bosley until October 28.

Ms. Bosley and Thomas gave somewhat differing accounts of their October 28 meeting, but both agreed that he did not give her any written offer, only an oral estimate. Ms. Bosley testified that Thomas offered her the $16,648.13, but only if she would sign a complete release of liability, which she was unwilling to do. In the two months since the incident, she engaged other contractors to look at the damage, which she feared was more extensive than originally thought. Specifically, a mold and moisture analyst had advised her to replace all insulation and clean all HVAC ductwork, just in case; Clean Air Systems, a contractor, quoted this work at $20,680.58. According to Ms. Bosley, Thomas replied that if she found additional damage, she could ask United Fire for reconsideration, but she "understood" that Thomas wanted her to gut the walls at her own expense, and if no mold was found, United Fire would not pay for the walls.

*696Thomas testified that because the Bosleys were not the insureds under Oliphint's policy, United Fire was obligated to offer them only actual cash value of the loss and could require them to sign a full release before payment. He recalled that she declined the oral offer not only because she disliked the release, but because with the west wing still under construction and all their furniture moved into the east wing, they had too much activity going on to gut and redo the green and blue rooms at that time. He also told her that gutting the walls of those rooms was part of his estimate; even if no mold was found, that work was included. At any rate, they reached no agreement. No work was ever done except to remove wet insulation from the attic.

By early 2012, Ms. Bosley thought she saw a small area of black mold behind a picture frame. ALTEC, an environmental consultant, found the air samples normal for mold and fungus, but warned of a potential for mold growth because of extensive water staining on the blue room ceiling. Thomas testified that he upgraded his estimate to $20,436.74, but this still did not include any mold remediation. Ms. Bosley testified that she would not accept this because it came nowhere near covering her damage.

The Bosleys filed this suit on August 23, 2012, naming Oliphint as defendant. They alleged their damages were around $35,000, and that United Fire refused to negotiate. Later, they amended their petition to add United Fire as defendant and to request penalties and attorney fees for failure to adjust the claim as required by La. R.S. 22:1892 A(4).1

On the evening of Christmas Eve, 2013, the Bosleys came home during a heavy storm and discovered that it was "raining inside" the green room, with water streaming from the top of the wall, around the Pella window, and onto the floor. With an HVAC contractor, Mr. Bosley climbed into the attic to inspect, and discovered a gap, some 3/8 inch wide and 12 feet long, between the bottom flange of the metal roof and the outer wall fascia. They called Oliphint back to the house; he admitted the gap was there, but insisted it was not the roofing contractor's duty to seal this, but rather the painting contractor's. Oliphint also found a huge pile of leaves and twigs in the storm gutter, which caused the water to back up and allowed a downspout to separate from the gutter. He felt that if the roof and gutter had been properly maintained, there would have been no second intrusion.

Thomas also came to inspect, but he felt the damage was not Oliphint's fault and thus he made no offer to adjust the window and other damage to the green room.

In June 2014, the Bosleys amended their petition to add allegations concerning the second intrusion. They contended that all damages were related to the negligent work performed by Oliphint in August 2011.

The matter came to trial over four nonconsecutive days in February and March 2016. The Bosleys, Oliphint and Thomas all testified as noted above. Several expert witnesses testified about mold testing and remediation, issues not contested on appeal.

The Bosleys called several contractors. Their lead witness was Brian Smith, of Brian Builders, in Bossier City. Smith considered the house a "historic older home"

*697and carefully described everything that Ms. Bosley "wanted fixed," but did not independently assess how much of her wish list was necessitated by the water intrusions. He gave a first estimate of $29,227.83, including mold remediation, and a second estimate of $18,912.47, without. He candidly admitted that his estimates were about three times higher than other contractors', but cited the high wages he paid his workers.

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