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When insurer's contractor overexposes home with ozone generator, family can sue

Ronald Brownlow and Susan Travis suffered a microwave fire in their home.  State Farm's adjuster retained "McCall Enterprise Inc." to clean up.  McCall removed the family from the home for the weekend and operated an ozone generator at a high setting to eliminate smoke damage.  When the family moved back in, many home furnishings were ruined by high ozone exposure.  The also alleged that they suffered health problems from lingering high ozone levels.  State Farm offered only pennies on the dollar for the personal property damage, so the family sued.

The trial judge dismissed both their injury claims and their claims under the Michigan Consumer Protection Act (MCPA).  Adding insult to injury, it awarded the contract more than $50,000.00 in costs against the family.  The family appealed only the property damage claim against the contractor. 

The contractor argued that as a residential building contractor with some degree of regulation by the state, he should be immune from MCPA claims.  In a couple of relatively recent Michigan Supreme Court cases, the Republican majority of the Court has ruled that the MCPA cannot be applied to protect consumers alleging abuse in a regulated industry (like insurance, for example).  The contractor argued that since the state regulates residential home contractors, he should also be protected, but the Court of Appeals rejected this argument. 

The mid-level court noted that under the normal language of the statute and the builder's regulations, since the builder was not changing the home structure, and was merely cleaning it, he was not acting within the regulated industry.  It noted that by his argument, someone hired to sweep the home with a broom would be a residential contractor.

The builder argued that the family did not present adequate proof that his use of ozone had caused the damages the family experienced.  The Court disagreed and documented that the family filed extensive proof, including proof of extensive damage to tile and other surfaces, totalling more than $150,000.  It proffered an expert's analysis that the cause of the damage was ozone misuse and a substantial number of scientific literature studies documenting ozone damage to property and particularly cultural artifacts.  It also documented that the ozone and formaldehyde levels in the home remained high even when the family reentered the home. There was also lay testimony documenting wood finish removal, crumbling bricks, sticky carpets and a myriad of other physican manifestations of excessive ozone.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262