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Builders aren't wild about Arnold's proposal, either. "It adds blood to the class-action feeding frenzy that we're seeing in the state surrounding soil issues," says Abby Lopez Muniz, director of government affairs for the Colorado Association of Home Builders.
Lopez Muniz adds that builders are wary of the simplified disclosure requirements, particularly since the adequacy of current soil summary reports given to home buyers has been hotly disputed in soil litigation. The CAHB's attorneys also believe that the conditional exemption from treble damages isn't strong enough, she says. (Sullan insists such damage cases are rare in Colorado.)
Arnold says that builders are "kind of myopic" when it comes to policing their own industry and fail to appreciate the merits of the legislation. "They should be telling people what they're getting into--and by doing this, they're going to be relaxing their own liability," he says.
And what if consumers don't understand the "plain English" soils analysis they receive? "If they don't understand it, they should go back and ask what it means," says Arnold, "and if they don't trust the homebuilder, then they ought to get an attorney."
After several months of negotiating with Writer over the problems with his property, Duffy did just that. He and a neighbor whose home was also buckling hired Sullan and filed a civil suit against Writer. But in 1997 the Colorado Court of Appeals ruled that the claims must go to arbitration because of a clause in the buyers' warranty agreements. Duffy's arbitration is scheduled for next month, after five years of frustration and mounting anxiety over the fate of his investment.
"Why is it a person has got to be a geotech engineer or hire an attorney to buy a house in Colorado?" Duffy asks. "Do they have that little faith in their product? Why doesn't the legislature look at home-buyer protection instead of homebuilder protection?"
Duffy describes the two-page summary report he received from Writer at the time of purchase as a "generic form letter" that gave little indication of the troubles to follow. He says both Writer and its engineering consultant declined to supply him with the company's full soils analysis; when he finally obtained it from other sources, he says, he learned that it contained several recommendations that simply weren't followed.
"They didn't tell me I had one of the three hottest lots of this tract," he says. "They didn't tell me they were going to ignore their structural and geotech engineers with regard to grading and foundation requirements. All of this was known to them before they ever took one shovelful of dirt out of this lot."
Writer executives dispute Duffy's claims. "We feel we gave him adequate disclosure that clearly met the law and was above and beyond that," says Dan Nickless, Writer's chief operating officer. "We invited him to contact our geo-technical engineer to get as much detail as he needed. We would never consider not making available to a buyer any information we have."
Nickless says Writer did follow its engineering report for the property, including grading the property for positive drainage away from the house and installing a structural wood floor, "which was at that time and still is the state of the art for addressing anything to do with expansive soils." He adds that the company has sought to work with Duffy to correct problems but that he refused further site visits after retaining Sullan, and that it's the company's position that Duffy has "enhanced his problem" by placing a sprinkler system too close to the house and making other modifications.
"Duffy's a tough deal for us," Nickless says. "We've been dying to help the guy. Quite honestly, he wants nothing short of somebody repurchasing his house and giving him a big payday."
Duffy says his lawn sprinklers can't be held responsible for the kind of swelling that even Writer's structural floor can't contain. "I have the kind of floor people sue for," he says. "Unfortunately, they didn't even put this together right."
As for Nickless's suggestion that he failed to give Writer a chance to correct the problem, he responds, "I gave them damn near two years. How much time do they need? At some point, I have to protect my rights under the statute of limitations."
Yet the underlying issue in Duffy's case, as in so many others, hinges on the question of disclosure. Many of the plaintiffs in expansive-soil cases are transplants to Colorado--like Duffy, a United Airlines customer-service representative transferred from Southern California. They say they'd never seen such soil conditions before, and the disclosure forms they received didn't give them sufficient information about what structural measures should be taken to avoid the problem.
"I've never been so blindsided by anything in my life," says P.K. Klass, a resident of uincorporated Arapahoe County who's been battling swelling soil under her house for the past three years. "If you move to Pacific Palisades and your house falls into the ocean, no one's surprised. If you move to Charleston and a hurricane hits you, that's a well-known thing. If you come to Colorado--well, you imagine your house settling. Who would ever think it would start coming up out of the ground?"