In the Eastern District of Pennsylvania, a group of plaintiffs filed a lawsuit against Fiberon for failure to prevent the growth of mold and mildew on their Portico Decking. The Seattle-based firm, Hagens Berman, alleges that the decking has a manufacturing defect that allows mold and mildew to grow, and they were refused repair services by Fiberon. Fiberon, however, called these claims “completely false” and blamed the staining on a lack of routine maintenance.
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Defendant denied latent defect caused mold, mildew, and other fungal growth
The Appellate Division of New Jersey recently upheld a lower court’s dismissal of a mold lawsuit. The plaintiff had alleged negligent construction of her townhome caused the mold. The court explained New Jersey law on expert testimony and concluded that a plaintiff’s expert’s opinion of proximate causation is sufficient to bring the issue before a jury. The issue at issue on appeal was whether the trial court erred by failing to hold an evidentiary hearing under Rule 104.
Defendant denied home owners’ maintenance issue
Defendant denies that any Portico decking is subject to rotting, peeling, checking, or fungal decay. Fiber maintains that the Limited Warranty covers the entire product, not just the defects in the material. Plaintiffs maintain that their Portico decks were damaged by the latent defect of the material, which caused ugly spotting and fungal growth.
The FAC claims that Fiber engaged in deceptive conduct when it marketed and sold Portico products. The manufacturer knew that the product would eventually become subject to rotting and fungal growth, but failed to warn consumers of the problem. As a result, Defendant knowingly and intentionally concealed this latent defect from the consumers. It is a violation of consumer protection laws that Defendant should pay for the damage to the homeowners who were affected by the defective materials.
Defendant denied responsibility for damage caused by a latent defect
A construction contract can provide requirements for tests and inspections. Compliance with contractually required procedures serves as proof of reasonable care. Likewise, failure to perform tests or inspections may not prevent a patent defect from arising. Therefore, failure to provide such procedures may be a breach of contract. A construction contract can also provide specific instructions as to whether defects should be treated as latent or patent.
In addition to establishing the existence of a latent defect, Plaintiff must prove that Defendant knew about the alleged defect, intentionally concealed it, or made it impossible to discover it by ordinary inspection. If Plaintiff proves that Defendant knew of the defect, he or she can claim damages by demonstrating that Defendant was negligent for failing to disclose material facts.
Defendant denied responsibility for damage caused by fungal growth
Fiberon, LLC, the manufacturer of Portico decking, has been accused of denying responsibility for the damage caused by fungi and mold. This lawsuit seeks monetary damages, declaratory relief, equitable relief, restitution, and disgorgement of profits, in addition to rectification of the problems. Although Fiberon denied liability, it has been recommending chemical treatments to remove the mold and fungus from the decking. Unfortunately, these efforts have not improved the problems.
