Madison - St. Clair Record

Wednesday, August 21, 2019

Florida property owner denies liability, says family had opportunity to inspect Collinsville home with mold

By Heather Isringhausen Gvillo | Apr 12, 2016


A Florida property owner alleges a Collinsville family had the opportunity to inspect a rental home in a lawsuit alleging concealed mold made them sick.

Eric and Amanda Zimmerman, individually and as next friend of minors E.Z. and A.Z., filed the lawsuit on Oct. 15 against Horrell Homes Property Management and Jennifer Ingles of Fort Myers, Fla., who owned the rental property.

According to the complaint, the Zimmermans signed a lease with Ingles on Sept. 30, 2013, who allegedly did not allow them to see the basement during an inspection. The plaintiffs allege Ingles said they were unable to go in the basement because her dogs were down there. However, the plaintiffs claim she knew that mold was present and was attempting to conceal it.

Then on Nov. 1, 2013, the plaintiffs moved in and began experiencing recurrent respiratory issues, including wheezing, coughing, eye inflammation and headaches, among other issues.

While moving boxes into the basement in June 2014, the plaintiffs claim they discovered mold covering the walls of the front room, which had been painted in an attempt to hide it, the suit states.

The Zimmermans allegedly sent the mold out for testing when it revealed four different types of mold. They moved out shortly after the discovery.

The plaintiffs allege negligence and fraudulent concealment of mold against the defendants. They seek redress under the Family Expense Act, because the minors were hospitalized and the plaintiffs have incurred medical expenses.

Ingles answered the complaint on Dec. 3 arguing that any alleged injuries were not caused by any omission or breach of duty on her part. Instead, she claims the alleged injuries were caused by the plaintiffs’ own negligence, fault and assumption of risk.

She filed nine amended affirmative defenses against the plaintiffs on Feb. 17.

She argues that the plaintiffs’ complaint is barred by the two year statute of limitations because it was filed on Oct. 15, 2015, but they signed their lease on Sept. 30, 2013.

Further, she states that any alleged injuries were caused by the action or inaction of the plaintiffs, Horrell Homes or other third-parties.

She argues that the plaintiffs were provided the opportunity to inspect the entire property, including the basement; they did inspect the entire property, including the basement, on at least one occasion before moving in; the alleged defects were open and obvious conditions; they signed an “Inspection Checklist” prior to moving into the property acknowledging they had inspected the entire premises; they were in sole control of the basement after moving in; and they unreasonably relied on any purported statement by the defendants in support of their fraud claim.

The Zimmermans replied to the defendant’s amended affirmative defenses on March 8 through attorneys Chad Mooney and Ryan Mahoney of Cates Mahoney in Swansea. They deny the allegations against them.

Defense attorney Martin Daesch of Onder, O’Leary & Peterson withdrew his appearance as counsel on Feb. 18. Attorneys Stephen Murphy and Jeff Wehmer of Sandberg Phoenix & von Gontard entered their appearance as substituted counsel for the defendants.

The plaintiffs seek damages of at least $50,000 for each count and for each family member, plus court costs and attorney’s fees.

They are represented by Chad Mooney and Ryan Mahoney of Cates Mahoney in Swansea.

St. Clair County Circuit Court case number 15-L-592

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