Nov/Dec 2017

News from Abdulaziz, Grossbart & Rudman

Abdulaziz, Grossbart & Rudman Newsletter
November / December 2017
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Greetings,

We hope that you enjoy this edition of our Newsletter.
 
Remember, if there is anything that you would like to see in the future, please let us know.
 
Sincerely,
 
The Staff at
Abdulaziz, Grossbart & Rudman
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As we approach the holidays, we take this opportunity to thank you for your continued patronage of our firm. We look forward to working with you in the coming years.

In light of recent events and humanitarian needs, instead of us indulging in holiday goodies, we are making a donation to those in need.

Kenneth S. Grossbart, Bruce D. Rudman, Milene C. Apanian, Kirk S. MacDonald, Sharice B. Marootian and the AGR Staff
BUT WHAT ABOUT MY EMOTIONAL DISTRESS?

By: Sharice B. Marootian

Homeowners often ask, "but what about emotional distress damages? Can't my contractor be liable for my pain and suffering?" Unfortunately for the homeowner, but fortunately for contractors and insurers, the answer is, no.
The California Supreme Court has held that emotional distress damages are not recoverable in negligent breach of a contract to construct a home case. In Erlich v. Menezes, Barry and Sandra Erlich hired John Menezes, a licensed general contractor, to build their "dreamhouse" on their ocean view lot. In December, they moved in; in February, the rains came. The house leaked like a sieve! The walls and ceilings were saturated, nearly every window leaked, and the living room filled with three inches of standing water. In some locations, the water poured in streams from the walls and ceilings.
Inspections confirmed defects in the roof, exterior stucco, windows and waterproofing. They also revealed serious errors in the home's structural components including the risk of catastrophic collapse of three decks. Both spouses testified that they suffered emotional distress as a result of the extensive defects and Menezes' unsuccessful repair attempts. Mr. Erlich was transported by ambulance after learning the full extent of the structural problems. He had a heart condition attributable in part to excessive stress, and had to resign from his job. Mrs. Erlich had a constant fear that the house would collapse and of her daughter's safety. But no one was physically injured by the negligent construction, and the family continued to live in the house for five years.
The Trial Court had awarded the Erliches approximately $400,000 for the cost of repairs. Each spouse was also awarded $50,000 for emotional distress; Mr. Erlich received an additional $50,000 for physical pain and suffering and $15,000 for lost earnings. The Court of Appeal affirmed, but the California Supreme Court overturned the decision.
Contract damages are generally limited to those within the contemplation of the parties when the contract was entered into or at least reasonably foreseeable by them at that time; consequential damages beyond the expectation of the parties are not recoverable. Therefore, the cost of repairing the home, including lost use or relocation expenses, or the diminution in value, are recoverable. However, although the homeowners' distress is real and serious, mental distress claims are not recoverable. The decision comes from a balancing of policy considerations, including the availability of insurance for builders. It is important to note that the Erliches could have recovered alternate housing expenses had they chosen to move out during repairs.
Some will ask, "what about all those cases we hear about where the plaintiffs are awarded emotional distress damages?" The answer is: recovery for emotional disturbance is excluded unless the breach or negligence also caused bodily harm or the contract or breach is of such a kind that serious emotional disturbance was a particularly likely result. For example, an infant injured during childbirth, misdiagnoses of venereal disease and subsequent failure of marriage, fatal waterskiing accident, failing to adequately preserve a corpse, cemetery's agreement to keep burial service private and protect against vandalism to grave, and bailment of heirloom jewelry with great sentimental value justify emotional distress damages. In summary, where the scenario involves personal responsibility with unavoidable traumatic results, or where the controlling factor of the contract is the mental and emotional well-being of one party, the claims give rise to emotional distress damages. Building a home, where the emotional upset stems from an inherently economic concern, the Courts disallow additional unforeseeable damages.
As the Court put it, "[t]he Erlichs may have hoped to build their dream home and live happily ever after, but there is a reason that tag line belongs only in fairy tales."


The Contractors' State License Board Website

When is the last time that you have visited the Contractors' State License Board website?

Not only can you check out what your license detail looks like to prospective customers, but there is lots of other useful information for contractors and consumers alike.

The website lists valuable information with respect to what is new in the industry as well as many needed forms, including many that can be filled out on-line.

If it has been a while since you have visited, go to www.cslb.ca.gov to check it out now.
Abdulaziz, Grossbart & Rudman
provides this information as a service to its friends and clients. This Newsletter is of a general nature and is not intended to be a substitute for legal advice. This Newsletter does not establish an attorney-client relationship with the reader. Since laws are ever changing, please contact an attorney before using any of the information contained within this Newsletter.
 
Abdulaziz, Grossbart & Rudman
6454 Coldwater Canyon Ave.
North Hollywood, California 91606
(818) 760-2000; (818) 760-3908 (fax)
In This Issue
Season's Greetings
But What About My Emotional Distress?
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