WEST VIRGINIA RECORD

CHARLESTON – The state Supreme Court has found that a Randolph County couple’s personal injury and property damage case arising from the alleged negligent clean-up of a sewage back-up was properly dismissed by the circuit court.

The court issued the per curiam opinion affirming the Circuit Court of Randolph County’s order granting summary judgment in favor of the defendant, Perfection Plus Turbo-Dry, LLC, on April 26.

According to the record, the Pingley family alleged that they were awakened at approximately 2 a.m. on April 14, 2007, to find their home flooded with a “substantial amount of sewage.” They were forced to move out of the home for three-and-a-half months while related clean-up and repairs were done.

The Huttonsville Public Service District allegedly spent more than $60,000 repairing the home and sewer line during the repair period.

On June 9, 2008, the Pingleys filed an action against HPSD, charging that they had not been compensated for the damage caused by the sewage back-up.

During the resulting litigation, the Pingleys filed their Third Amended Complaint, bringing Perfection Plus into the case as a defendant. Perfection Plus had been hired to “perform Emergency and/or Restoration Services and any/all necessary Supplemental services... for damages to structure and/or contents sustained as a direct result of sewage backup occurring on 4/15/07.”

The Pingleys claimed that after Perfection Plus completed its work on June 11, 2007, they smelled a “stench” and observed a run-off of water under the house which they contended was the result of work done by Perfection Plus.

They claimed that as a result of Perfection Plus’ negligence, the house was contaminated with mold, which caused Brandy Pingley severe health problems. The allegations against Perfection Plus arouse during the discovery process.

"It is undisputed,” the opinion states, “that prior to July 28, 2010, the date on which the Third Amended Complaint was filed, Perfection Plus had no knowledge of the ongoing proceedings against HPSD, and no knowledge that the petitioners were dissatisfied with Perfection Plus’ services.”

The circuit court granted summary judgment to Perfection Plus on the grounds that the contract included a “Mold/Mildew/Bacteria Waiver” was neither unconscionable nor against public policy and that the Pingleys’ claims were barred by the statute of limitations. The Pingleys appealed.

The Pingleys’ claims against HPSD were settled and so only the claims against Perfection Plus were on appeal.

The court began its discussion with the Mold/Mildew/Bacteria Waiver that was in the contract. It reads:

"An accumulation of moisture in a structure may give rise to the presence of mold, mildew and bacteria. Mold, mildew and bacteria may pose significant health risks to certain individuals. While Perfection Plus Turbo-Dry, LLC will make every effort to identify existing mold, mildew and bacteria and dry the structure, it offers no assurance that your structure is free of mold, mildew or bacteria and may not be held liable for hazards to health or structure damages caused by mold, mildew or bacteria.

"If the structure has ever sustained water damage and you are concerned about the presence of fungal growth, please contact a Certified Hygienist. Perfection Plus Turbo-Dry, LLC and its employees may discuss the dangers of mold grown, but they are merely opinions and should be substantiated by a Certified Hygienist. Perfection Plus Turbo-Dry, LLC’s opinions should not dissuade you from seeking the professional advice of a Certified Hygienist prior to making a decision to forego Mold/Mildew and Bacterial treatments or remediation efforts. We encourage you to seek professional advice and/or testing on the subject."

The opinion says a determination of unconsionability requires an analysis that asks if the contract was procedurally and/or substantively unconscionable.

“A determination of unconscionability requires a two-part analysis: whether the contract is procedurally unconscionable, and whether it is substantively unconscionable,” the opinion states.

“The Pingleys admit that Perfection Plus’ disclaimer of liability for damages caused by mold was discussed with them at the time they signed the contract. They allege, however, that the contract was one of adhesion because its terms were not negotiable, and that the waiver of liability is unenforceable for that reason.

“In the instant case, there was no great disparity in the relative positions of the parties: the Pingleys needed clean-up services, and although they claim that Perfection Plus was the only business of its type in Randolph County, the evidence of record does not reflect that Perfection Plus held ‘either a monopolistic or oligopolistic position in [this] particular line of commerce.’

“The contract was not a lengthy or complex document; it was one page long. The disclaimer was highlighted, both with a bold-face heading and with underlining of the key points, and it is undisputed that it was discussed with the Pingleys at the time the contract was signed. Although the Pingleys are not sophisticated businesspeople, nothing in the record indicates that they are illiterate or particularly unsophisticated with respect to normal business decisions affecting the household.

“Finally, although the contract may be viewed as a contract of adhesion – it was a pre-printed form contract and its terms were not negotiable – that “is the beginning point for analysis, not the end of it... Taking all of these facts into account, we conclude that although the contract between the Pingleys and Perfection Plus was a contract of adhesion, it was not procedurally unconscionable under our precedents.

“Here, where Perfection Plus specifically advised the homeowners that it was not making any guarantee with respect to the presence or growth of mold, specifically advised the homeowners of steps to be taken if they had any concerns about mold, and specifically advised the homeowners to take those steps, nothing gives rise to an inference that the Pingleys were unwary and taken advantage of.

“The bottom line is that Perfection Plus’ mold disclaimer was neither unfair nor unreasonable. We therefore conclude it was not substantively unconscionable under our precedents.”

Having ruled on the unconscionability issue, the court then looked at whether the disclaimer violated public policy as the Pingleys argued.

“Specifically, the Pingleys argue that allowing a commercial entity to draft an anticipatory release would be akin to allowing an attorney to draft a contract of representation that disclaims liability for his or her malpractice. This analogy does not hold,” the opinion says.

“In the instant case, Perfection Plus did not have a fiduciary relationship with the Pingleys; rather, the parties entered into a standard, arms-length commercial transaction.

“We are aware of no public policy that requires a private business entity to assume liability for work or services that it does not perform, where, as here, it has given the customer notice that it does not perform the services, has provided information to the customer as to what entities do perform them, and has advised the customer to consult such entities.

“In the absence of a statutory standard of care and because Perfection Plus is not engaged in a public service, we conclude that the waiver of liability for mold-related damage in the company’s contract did not violate public policy under our precedents... The judgment of the Circuit Court of Randolph County is affirmed.”