March 2001
By Dan Bryson

I have been involved in the "stucco wars" for approximately seven long years now. During that time period, I have often thought that the dispute would run its course "by the end of the year." However, as I look over my current cases, I realize the dispute may last for many more years. Further, I consistently receive calls from owners and attorneys from all over the country. These people typically have questions, but often have interesting bits of information about the dispute in their part of the country. For example, a few days ago, I learned crucial information about an important EIFS case in North Carolina that occurred almost 1.5 months ago and for some reason the word did not get to me (the North Carolina Supreme Court denied discretionary review in the EIFS related Medlin case- I will talk about the significance of this case later). Based on all of the foregoing, I have decided to write a monthly column (or coerce other attorneys who handle EIFS cases to write) and update anyone who is interested in "what's hot with EIFS litigation". Of course, since anyone can read the column (including opposing counsel and the manufacturers), I will have to be somewhat circumspect as to the content. However, I have often told opposing counsel that homeowners have nothing to hide in this dispute. Futher, as I hope anyone who reads this realizes, the contents of this column are simply my opinion, and you know what they say about those.

A very disturbing trend that I have noticed recently is an increasing number of calls from people complaining that they have EIFS on their house and that they, and their children, are inexplicably sick with a variety of respiratory illnesses. Of course, a concern about "sick building syndrome" arises. The possible problem is that as the water is trapped in the wall of an EIFS clad house, a variety of molds can grow in this damp and dark environment. These molds can then release spores into the house, which are breathed in and lead to sickness. Some of these molds, such as stachybotrys, can be deadly. On February 8-9, 2001 in Philadelphia, Mealeys held a "Mold Conference". The materials are excellent and can be ordered from Mealeys by calling 1-800-MEALEYS. Although, I am aware of settlements involving civil lawsuits and sick building allegations, I am not aware of any specifically involving EIFS. If you are aware of any, please let me know. I will write more about this topic in the future.

On February 1, 2001, in the case of Medlin v. FYCO, 534 S.E.2d 622 (Aug. 15, 2000) , the North Carolina Supreme Court denied review of a North Carolina Court of Appeals decision which was a huge win for homeowners. To make a long story short, the Medlins sued their builder over their EIFS clad house. The jury returned a verdict for the homeowners against the builder for $187,305 and the builder appealed. In upholding the verdict for the homeowner, the Court held that the builder had breached the implied warranty of habitability because the house "failed in the essential requirement of keeping moisture out." I commend the entire opinion to your review. The attorneys for the builder had indicated to me that they were "confident" that the Supreme Court would overturn this decision! The opinion can be found by clicking on our link of "Reported EIFS Cases."