WEST VIRGINIA RECORD

MARTINSBURG – A Berkeley County couple have settled their fraud lawsuit against Dan Ryan Builders and Eagle Excavating & Contracting nine months after it was ordered to arbitration.

On April 11, U.S. District Judge Gina Groh, of the Northern District of Martinsburg, entered an order dismissing the lawsuit brought by David and Gabriella Schultz in 2012. The case was originally filed in Berkeley Circuit Court.

Their lawsuit said the home they paid to have built was structurally unsound and “a personal, legal and financial disaster” for them.

“Both DRB and Eagle owed the Schultzes a duty to perform their work with regard to the construction of the home and the septic system with diligence and due care; both breached their duty,” the complaint says.

“Their work on the illegal, nonconforming, dangerous and sloppily-built home was negligence in an extreme degree and has resulted in a home which is not fit for its intended purposes, illegal as a matter of law, without value and injurious to its occupants.”

The septic system at issue was installed by Eagle, the complaint says. It was allegedly done so in violation of numerous laws and regulations.

The lawn over the drain is sometimes wet from substances exiting the systems that cannot adequately drain, resulting in a stench, the complaint says.

Because the plaintiffs relied on a well for water, having waste in the ground poses a significant health hazard, they say.

Also, the basement and garage slabs are of poor quality and contain numerous cracks, they say.

Terms of the settlement were not disclosed in court records. The Schultzes were represented by Kirk H. Bottner of Charles Town.

DRB argued there was an arbitration provision in the contracts they signed. Groh granted that request after guidance from the state Supreme Court.

Groh wrote that the contract did not contain substantive unconscionability.

“(T)his contract does not attempt to exculpate DRB from any alleged misconduct,” Groh wrote.

“The contract did not contain any provisions requiring Plaintiffs to waive any statutory or common law warranties. The contract did not state that DRB is not liable for special, indirect, or consequential damages.

“Additionally, the contract did not prohibit Plaintiffs from retaining their own attorney to review the contract, and Mrs. Schultz acknowledged that they could have retained an attorney.”

“In sum, considering the totality of the circumstances in this case, Plaintiffs have failed to demonstrate that the contract and its terms were so unfair that it resulted in an overall imbalance or one-sidedness of the contract.”