Wood-Boring Beetles in Homes Open a Can of Worms
By and large, builders loathe California’s strict liability law, which allows homeowners to sue for defects found in the first 10 years after a house is built.
This year, the industry’s lobbyists tried to get the Legislature to establish an option, a 10-year warranty. By accepting the warranty, the homeowner would have given up most rights to sue. But lawmakers, perhaps recognizing that warranties frequently have more holes than Swiss cheese, wouldn’t do anything.
The matter will undoubtedly be brought up again next year, since lobbyists seldom quit, but a lawsuit in Riverside shows the existing law’s value.
The claims in that case may result in a settlement or end up in court. But if the homeowners’ current losses--and fears of future ones--can be established as reasonable, strict liability provisions will probably get them more than a warranty ever could.
About 20 families moved last April into new houses in the Moonlight Ridge subdivision in southeastern Riverside. The houses were priced at about $225,000 and were built by Continental Homes, a subsidiary of D.R. Horton Inc.
As pre-summer heat in the Inland Empire grew, inch-long wood-boring beetles--a variety called pine sawyer--began burrowing out of the frames through the drywall in the homes, creating holes about a quarter-inch in diameter.
There weren’t all that many holes visible, but one homeowner, Beverly Garn, removed a four-foot section of drywall and counted 62 holes behind it. For the homeowners, it was frightening.
When they complained, Continental responded in several letters, finally stating on June 9 that its “plan of attack remains to allow the beetle to emerge from the wood and drywall, and then patch and paint the [affected] area. Fumigation continues to be of little or no use.
“Since our first discovery of the nuisance, we have maintained that Continental Homes considers this a warranty issue and will be there for our home buyers to repair every occurrence,” the letter added. The warranty was extended from one year to 10, and the beetles were termed “a one-time event.”
Not satisfied with the “patch and paint” response, the homeowners retained construction defect attorney Ronald Green of Palm Springs to file a lawsuit on their behalf.
I was contacted by one of the homeowners, Jeff Coming, and visited him and his family. A few neighbors were present, as was Green.
Coming minced no words. He said an expert had told the group that the beetles could keep coming out for 30 or 40 years, and he suggested the resale value of his home would, in that event, fall precipitously.
Accordingly, Coming said, he wants the home entirely replaced.
As in many lawsuits, contention builds from there.
Tom Noon, regional director for D.R. Horton, told me, “I have never seen anybody benefit by such suits but attorneys. . . . [They] get in the way. They physically stop corrections from being made. Everything they do makes the problem worse, for their own benefit.”
Green responded, “When the homeowners were begging for them to fix this for two months before calling me . . . they offered nothing more than a Band-Aid fix.”
Aside from heated rhetoric, the issues in Riverside apparently revolve around two main questions: How long will the beetles keep coming? And what could Continental and its subcontractors have done to prevent them from getting in the frames in the first place?
Already, the experts on each side can’t agree at all.
Continental’s vice president of construction, Don MacKay, told me, “According to numerous experts in this field, including several university professors of entomology [the study of insects], the infestation of this pine sawyer beetle is one to two years.”
He referred me to Bert Lopez, an Anaheim entomologist.
Lopez was more categorical. “These beetles are done,” he said. There are species that “can come back for years,” but not these.
But plaintiffs’ expert, John Chemsak, curator emeritus at the Essig Museum of Entomology in Berkeley, maintained that, for this variety of beetle, there is “delayed emergence. . . . Sometimes, they come out 15 or 20 years later.”
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Obviously, if Lopez is right and the infestation ends now, the Comings probably won’t have too many problems reselling their home for a profit. But if Chemsak is correct, and beetles still are emerging in 15 or 20 years, who will want the house?
That is truly an appropriate issue to be litigated.
But was there something that could have been done to prevent this from ever occurring?
The lumber, according to Dee Sanders, general manager of the Trinity River Lumber Co., in Weaverville, Calif., was Douglas fir salvaged three months after a July 1999 forest fire.
Any beetles could have been removed by kiln drying the wood but, according to Sanders, with Douglas fir “most of the time it’s not kiln dried.” He said occasionally there have been claims of beetles, but settlements haven’t been costly.
Continental’s MacKay said, “With very few exceptions, kiln-dried lumber is not used in the production home building industry. The increased cost and delayed time to get lumber product to market does not warrant [its] usage.”
I contacted Robert Bernhardt at the Western Wood Products Assn. in Portland, Ore.
“Douglas fir is often sold as green [undried],” he explained. “All lumber has moisture. It is dried either naturally or by kiln drying.”
But with salvaged lumber, there is a greater chance of insects, Bernhardt said, and he felt kiln drying might have been chosen in this case. The process would have cost about $500 for each house. All told, counting all kinds of lumber in the West in 1999, 56% was kiln dried.
Sounds like this question, too, is suitable for litigation.
A lot is at stake in the Riverside case, including the happiness of 20 families. I’m not at all sure a warranty, or even mediation or arbitration, most likely with private judges operating in secrecy, would be the fairest way to resolve it.
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Ken Reich can be contacted with your accounts of true consumer adventure at (213) 237-7060 or by e-mail at ken.reich@latimes.com.
