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AMICA MUTUAL INSURANCE COMPANY v. HENDERSON

May 14, 2003

AMICA MUTUAL INSURANCE COMPANY, PLAINTIFF,
v.
PATRICIA HENDERSON, DEFENDANT. PATRICIA HENDERSON, INDIVIDUALLY AND AS GUARDIAN OF IAN HENDERSON AND ALEX HENDERSON, DEFENDANT/COUNTERCLAIM-PLAINTIFF, THIRD-PARTY PLAINTIFF, V. AMICA MUTUAL INSURANCE COMPANY; SERVICEMASTER COMPANY; O'BRIEN PLUMBING & SEWER; JC RESTORATION, INC.; AND ENVIRONMENTAL DIAGNOSTICS, INC.; COUNTERCLAIM-DEFENDANTS AND THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: John W. Darrah, United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, Amica Mutual Insurance Company ("Amica"), filed a Complaint for Declaratory Judgment against Defendant, Patricia Henderson ("Henderson"). Subsequently, Henderson filed a Counterclaim against Amica and a Third-Party Complaint against Servicemaster Company ("Servicemaster"); O'Brien Plumbing & Sewer ("O'Brien"); JC Restoration, Inc. ("JC Restoration"); and Environmental Diagnostics, Inc. ("Environmental"). Presently pending before the Court is Environmental's Motion to Dismiss Certain Counts of the

Third-Party Complaint

A reading of Amica's Complaint for Declaratory Judgment supports the following summary of the alleged conduct of the parties as to its claims.

Amica issued homeowners insurance to Henderson for her residence in Chicago, Illinois. The Amica/Henderson policies provide coverage for dwelling, other structures, personal property, loss of use, and personal liability. The policies do not provide coverage for the insured's personal injury, pain and suffering, medical care, lost income, or increased cost of succeeding insurance.

On September 9, 1998, Henderson sustained loss to her residence resulting from a fire which occurred at an adjacent residence. Henderson reported the occurrence to Amica, and Amica began adjustment of the losses.

On July 22, 2001, Henderson sustained losses to her residence resulting from a windstorm that damaged the siding to her home. Henderson reported the occurrence to Amica, and Amica began adjustment of the losses under this claim. In the course of the investigation of the second claim, water and mold damage to Henderson's property was discovered, some of which allegedly resulted from the fire loss of September 9, 1998. After notification of the alleged mold damage, Amica retained specialized service companies to perform investigations and microbial toxin testing at the Henderson property. Amica also retained service companies to repair and remediate the damage to the Henderson property. Amica has issued payment to Henderson and on Henderson's behalf under both claims.

On April 26, 2002, Amica received correspondence from Henderson's legal counsel, requesting that Amica pay for her residence to be razed and rebuilt. On July 9, 2002, Amica received another correspondence from Henderson's legal counsel, requesting settlement specified claims set forth in the correspondence.

Amica seeks a declaration that the insurance policies do not provide coverage for certain claims by Henderson and a determination by this Court of which damages claimed by Henderson are covered under the insurance policies and the amount of loss recoverable by Henderson under the policies.

Subsequently, Henderson filed a counterclaim/third-party complaint. A reading of Henderson's Amended Counterclaim/Third-Party Complaint supports the following summary of the alleged conduct of the parties as to her and her sons' claims.

On three occasions — September 1998, June 1999, and August 2001 — Amica assumed responsibility for repairing damage to Henderson's home. Amica selected and hired JC Restoration and Environmental to inspect, repair, and remediate the damage and contamination. On each occasion, the contractors hired by Amica performed the repair work negligently. As a result, water was able to seep into Henderson's home, causing toxic mold to grow and spread throughout the home.

Specifically as to Environmental, Henderson alleges that Steven Parkhurst ("Parkhurst") of Environmental inspected her home in August 2001. At that time, he found mold and water intrusion in several areas of the home. Parkhurst returned in September 2001 to collect air and surface samples for a microbial study. Although Parkhurst knew, or should have known, that the mold in the home was toxic, Parkhurst failed to warn Henderson of the potential dangers of the mold contamination.

In October 2001, JC Restoration began the remediation and repair. Prior to this time, Environmental took no steps to isolate or contain the mold. As a result, the mold spread throughout the home. Environmental visited the Henderson home on several occasions while the remediation work was taking place. Environmental knew or should have known that JC Restoration was not following proper procedures to remove and remediate the toxic mold, and Environmental did not tell JC Restoration to change their negligent procedures.

Henderson's claims against Environmental include: negligence (Count V) in connection with Environmental's failure to tell Henderson that the mold in the home could be toxic, failing to tell Henderson that contact with the mold could be hazardous, and failing to tell Henderson that JC Restoration's work did not isolate and contain the mold contamination; intentional infliction of emotional distress (Count VIII) by allowing Henderson and her family to reside in the home knowing the toxicity of the mold in the home; and ...


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