Should you file a lawsuit?



We are often asked if a lawsuit should be filed. Our response is only as a last resort. Civil litigation can be time consuming and costly. The last thing most homeowners want to do is be involved in protracted litigation. Therefore, we advise you to exhaust all avenues of negotiation with the responsible parties prior to initiating a civil lawsuit. This involves contacting your general contractor and meeting with him to explain the problem. As the general contractor, he (or she) is typically responsible for insuring that your new home exhibits good workmanship and was built with good materials. The general contractor should contact the EIFS manufacturer on your behalf and explain the nature of your problem. It is very important that you put in writing to the general contractor what you want and why. Require a response from him within a certain period of time, typically less than thirty days. The warranties provided by various contractors are different and each contractor interprets his warranty responsibilities in different manners. A typical contractor warranty is one year. However, there are good legal arguments that hidden or latent defects have a much longer warranty period (often three years). The bottom line is that if the general contractor, his subcontractors and the EIFS manufacturer can satisfactorily resolve your situation, aggravating litigation is avoided.

However, it has been our repeated experience over the years that all of the potentially responsible parties (general contractor, EIFS subcontractor, EIFS manufacturer, etc.) will blame each other and point fingers rather than resolve the situation. In this situation, civil litigation is a viable option. The parties are forced to deal with each other toward resolution of your case or face the possibility of explaining their actions to twelve jurors, most of whom would be homeowners or former homeowners. Remember that each State has stringent statutes of limitation and repose (often three years from the date a problem is discovered) which will absolutely bar your case if allowed to lapse. Therefore, timely filing of a lawsuit stops the running of this time clock. Certainly, once this time clock is stopped, negotiations with the responsible parties can continue.

Civil litigation typically will put the situation in the hands of attorneys and insurance adjusters who have handled dozens of these cases. For example, most residential general contractors in a particular state are insured by the same insurance company. Therefore, the same adjusters and attorneys handle claims against numerous contractors. Similarly, the same law firm represents the two largest stucco manufacturers- Dryvit and Sto. Their knowledge of the dispute and common settlement amounts and our familiarity with these participants often leads to a prompt resolution.

A civil trial consists of a pleadings stage, a discovery stage, mediation, a summary judgment stage, then a trial stage.

I. The Pleadings Stage

This stage begins with the filing of a Complaint. The defendants as a general rule have up to sixty days to answer the Complaint and will typically take the entire time. In addition, we have found that the defendants are also suing the window manufacturer, the roofer, and occasionally others involved in the construction of the house. When these parties are sued, they also get up to 60 days to file an answer. In summary, this stage typically takes three to four months to complete. .

II. The Discovery Stage

During the pleadings stage and after it has concluded, the parties are allowed to conduct "discovery." Discovery consists primarily of interrogatories (written questions that each side is allowed to ask), document requests (each side can request the others sides pertinent documents) and depositions (each side can take the sworn testimony of the other sides witnesses, including the defendants and plaintiffs). The purpose of discovery is to learn about the other parties case to prepare for trial, and to assess settlement possibilities. We have developed standard written interrogatories and document requests that we serve on the general contractor, the EIFS applicator, and the stucco manufacturer. The parties typically have up to sixty days to answer. Also, we are not limited to one set of interrogatories or document requests, and can ask additional questions or request additional documents at the appropriate time.

III. Mediation

Most Courts will order "mediation" after four to six months, depending on the congestion of the court dockets. In most cases, however, mediation does not actually commence until the case has been on file for ten to twelve months. Mediation is the best opportunity to settle the case. We have settled dozens of cases during mediation. The Court orders mediation in the hope that the parties will settle the case and not have to clog up the courts with a complicated trial. In a mediation, a mediator, typically a lawyer who is a certified mediator, attempts to bring the parties together. Each defendant is in attendance, with their attorneys, and insurance adjusters. If the defendants do not offer the amount you will settle for, the mediator declares an "impasse." This is legal jargon for "the case did not settle, get ready for trial". If the case does not settle at mediation, the lawyers can continue to negotiate, but it is much more cumbersome to negotiate with one defendant at a time, typically over the telephone. You should not be discouraged if the case does not settle druing mediation. We have settled dozens of cases after mediation.

IV. Summary Judgment Stage

After discovery concludes, the parties can file for summary judgment. Hopefully, you will not have to endure this stage. "Summary judgment" is a request by the defendants to have some, or all, of your case thrown out of court "as a matter of law." The arguments are varied, but typically center on the defendants' pereceived lack of legal obligations to you. For example, the general contractor may argue that he owed no warranty obligations to you with regard to the EIFS. The EIFS manufacturer will argue the same thing, and that any problems are the general contractor's responsibility. Often there is an insurance coverage dispute with one of the defendants or some other argument that precludes settlement at that time. After summary judgment, the next stage is the trial stage.

V. Trial Stage

If the case does not settle, twelve jurors will hear your case. In very general terms, the plaintiffs put on their evidence first, then the defendants, then the jurors decide. We realize that no homeowner wants to even consider the time and expense of a trial. However, this is a reality that you must consider, short of dismissing the case, if the case does not settle. Of course, some of the best settlements come on "the court house steps" or during the trial. As a general rule, it is typically at least one year from the filing of the Complaint, before the case will be placed on a trial calendar.

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