A construction company and a contractor filed motions for summary judgment in an asbestos attorney’s lawsuit alleging mold and water infiltrated his $775,000 Troy home.
The suit was filed by Simmons attorney Christopher Guinn and his wife.
Defendant Customary Construction filed a motion for summary judgment on March 10 through attorney Michael Hobin of Reed Armstrong Mudge & Morrissey in Edwardsville.
The defendant argues that the plaintiffs waived all warranties, barring damages sought for breaches of implied warranties in counts II and III.
Defendant Kevin Kahrig filed his motion for summary judgment on March 3 through attorney Peter Maag of Maag Law Firm LLc in Wood River.
He argues that damages sought for negligence in count I are not recoverable as purely economic losses and damages sought for breach of implied warranties in counts II and III are barred because the plaintiff waived all warranties.
He also argues that damages sought for fraud in counts IV and V are not recoverable “as plaintiffs could not point to false statements made in the sales transactions, or adequately explain a duty to disclose any alleged defects in an ‘as is’ sales transaction.”
“At best, Plaintiffs try to argue that somehow Defendant Kevin Kahrig somehow had a duty to deviate from the doctrine of caveat emptor, based merely on Kevin Kahrig’s status as a contractor,” the motion states.
Kahrig adds that the plaintiffs do not recall specifically reading the sales contract in its entirety, "cannot list a single false statement made by Kahrig in a fraud case, wish to pursue warranty claims that were disclaimed and searched for claimed defects after provided for by the contract."
He also argues that the contract requires this mater be resolved in mediation.
That same day, Madison County Circuit Judge Dennis Ruth granted partial summary judgment for count I in favor of Customary Construction, which is based on negligence only.
However, he wrote that this order does not apply to Kahrig.
Customary Construction sought partial summary judgment on Oct. 6, arguing that summary judgment is appropriate for count I, which alleges the defendant owed the plaintiffs a duty to exercise reasonable care in the design and construction of the home.
“There is no dispute of fact that Count I of Plaintiffs’ Complaint seeks purely economic damages under a negligence theory against Customary Construction, LLC, which is not proper,” the motion stated.
“Plaintiffs alleged damages in this case are purely economic losses that are not recoverable in tort,” it continued. “Plaintiffs seek damages for alleged diminution of value of their home and costs to repair or replace the walls and deck. Plaintiffs have not alleged any harm above and beyond disappointed expectations.”
Customary Construction also sought dismissal, which Ruth denied on March 3.
The defendant argued that the plaintiffs have failed to answer the interrogatories and request for production, which were filed on July 6.
On Sept. 30, the court entered an order compelling them to answer the discovery requests.
The Guinns filed the lawsuit against Customary Construction and builder Keven Kahrig in April through attorney Jason Johnson of HeplerBroom in Edwardsville. They claim their home at 474 Tyler Dr. in Troy is uninhabitable due to mold. The Guinns purchased the home from Kahrig in September 2014 for $775,000.
The Guinns allege a Feb. 22 inspection report listed numerous defects in construction, including improperly constructed exterior walls and deck, which they say caused the water infiltration.
The plaintiffs claim they have been forced to live in a separate location and will continue to do so until the defects are fixed.
Madison County Circuit Court case number 16-L-443