Adams v. NVR Homes, Inc.

No. CIV H-99-846 (135 F. Supp. 2d 675) (D. Md. March 23, 2001)

ELR Digest

The court grants in part and denies in part various motions for summary judgment involving homeowners' claims that a residential development company failed to inform the homeowners of the prior use of the land on which the homes were built in violation of state and federal laws. The land in question was the site of a sand and gravel surface mine operation, and from time to time solid waste was deposited in the pits created by the mining operations. The pits were later filled with tree stumps, concrete, asphalt, and general construction debris. Before construction of homes on the site, several studies of the site's subsurface conditions found no hazardous materials or environmental contamination. The homeowners, however, were never told of the prior use of the property, and after the closings on their homes, methane gas was discovered in three of the houses. The homeowners alleged that the company's failure to notify them of the past use of the property violated state and federal laws.

The court first holds that because the conditions in the homes do not present an imminent and substantial endangerment, the homeowners cannot maintain a Resource Conservation and Recovery Act citizen suit. No credible evidence was presented that an immediate and serious risk of harm now exists if remedial action is not taken. The court next holds that no public nuisance exists because the conditions in the development do not present an unreasonable interference with a right common to all members of the general public. Additionally, the court holds that the homeowners' claims for fraud and concealment must fail. Statements about the reputation, workmanship, and prior use of the property were not made with the specific intent to defraud the homeowners, and there are insufficient facts to support the contention that the company knowingly withheld information with the intent to deceive the homeowners. The court also holds that the company did not engage in any unfair or deceptive trade practices as that term is defined in the Maryland Consumer Protection Act. The court further holds that there was no breach of contract or express or implied warranties. The court then holds, however,

that there is sufficient evidence to send to a jury the homeowners' claims of negligence and negligent misrepresentation. Likewise, the court holds that 17 individual homeowners presented sufficient evidence indicative of a mental state to go forward with their claim for damages for emotional distress.

The court next holds that the company may go forward with its breach of warranty and express indemnity cross-claims against two other developers, but it grants the developers' motions for summary judgment as to the company's claim for contribution. The court also grants additional developers' motion for summary judgment as to the company's contribution and indemnity claims. Additionally, the court grants individual third-party defendants' motions for summary judgment as to the company's contribution claim, but denies their motion as to the company's claim for indemnity. Further, the court holds that one of the developers is not entitled to indemnification by the company. Last, the court denies an engineering firm's motion for summary judgment against two of the developers that seek indemnity and/or contribution from the firm to the extent the builders are found to be liable to the company and/or to any or all of the homeowners.

The full text of this decision is available from ELR (37 pp., ELR Order No. L-357).

Counsel for Plaintiffs
Robert Brager
Beveridge & Diamond
201 N. Charles St., Ste. 2210, Baltimore MD 21201
(410) 230-3850

Counsel for Defendants
Steve A. Allen
Hodes, Ulman, Pessin & Katz
901 Dulaney Valley Rd., Ste. 400, Towson MD 21204
(410) 938-8800

[31 ELR 20608]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]