The Experts Descend
Baxter made arrangements for Mr. Sam Russell to survey the house. Russell, in his late 60s at the time, is an architect experienced in residential design. He examined our house on March 27, 1987 and later wrote a detailed letter to Baxter, detailing the repairs necessary to restore our home to what we had contracted for (see Appendix). Before Russell's letter was received we had contacted a structural engineer on our own, Mr. Bill Sloan. Mr. Sloan came April 5 and spent considerable time looking at joists and beams.
"Your house is sloping, no doubt about it," said Sloan. "Is it because of the house or the land? We need to find out. Before I can make a report I need a soils sample."
"What is that?"
"We'll have to drill bore holes around the outside of the house, remove the soil and get it analyzed. It will tell us what kind of land the house sits on.
"Do you do that?"
"No, but I have the name of a firm you can call."
"How much is this soils analysis?"
"Is it really necessary?"
What choice did we have? We arranged to have a soils analysis. On April 6 Mr. Sloan filed a preliminary report. (His final report would take another month, since it was dependent on the soils report.) In his preliminary report he wrote:
Even for a structural engineer, it was hard to conceive that the house had been designed and built in such a sloppy fashion. On April 9 a local contractor, whom I will call Ralph, came with Mr. Russell to survey the house and tell us how much it would cost to make complete repairs. This contractor had never before seen such a mess in new home construction. Another visit would be necessary before he could give a valid estimate.
In a little over a month we had hired four experts, including our trial lawyer. At this point none of the defendants knew who our experts were, what we had discovered, or how we planned to pursue the case.
While we were paying thousands of dollars to prove defective construction Murdock continued to build houses and advertise `Quality Construction.' From our perspective progress seemed too slow for such an obvious case and we began having doubts about attorney Baxter. Was he aggressive enough? Was his approach correct? Shouldn't we file a lawsuit immediately? Why wait for all these reports? Through a friend we learned of a lawyer who also had a degree in architecture. We thought: `Maybe that's the type of lawyer we needed, someone also expert in construction.' Common sense told us it's better to have an ace litigator who can rely on experts than a less talented lawyer who also happens to be an architect. But we were desperate for another legal opinion. Baxter's slow approach was adding to our frustration. This attorney/architect came out to the house on April 14. He examined the plans and went through the house in detailed fashion, just as other experts had done earlier. The attorney/architect's opinion was the same. The house had major structural defects. He had seen similar problems before, but not this bad and never in a new house. What about the legal situation? we asked. In his experience almost all residential construction problems settle out of court. Our case was clearly of a different magnitude. It would likely go to trial. If we hired him he would want to use different experts, which meant we would also have to hire a new structural engineer and architect.
We thanked him and said we needed to think about our situation before switching attorneys. After he left Larry and I came to a quick and mutual decision. Baxter was probably doing what any competent attorney would do. No point in starting over. Ralph's repair estimate was sent to Mr. Russell on April 20. After detailing the work necessary to restore our home he summarized:
Ralph's estimate did not include digging up the basement and repairing the wall cracks, repairs necessary to restore the house to normal construction standards. When the basement repair was added to the cost of moving out for three months, we were talking about $150,000. Well, we thought, the cards are on the table. The house is a certified disaster. A construction fiasco. No one had ever heard or seen anything this bad in new house construction. Surely, we thought, Murdock and Cooper won't want a lawsuit over this. The soils report was received on April 28. It included a nine page analysis of the soil conditions surrounding the house. The report's conclusions:
In other words, the problems lay not with the land but with the house itself, its design and construction. On April 30 Baxter mailed our experts' reports along with covering letters to Murdock, Cooper, and Nelson, inviting them to a meeting at our home on May 12. Baxter's strategy was to lay all the cards on the table and try to achieve settlement at that meeting.
Until Baxter's letters went out we did not know who was insured or for what. We subsequently learned that Murdock did have a builder's insurance policy, through one of the biggest insurance companies in the country. Unfortunately, Nelson was uninsured. In contrast to what he had told us two years earlier, Nelson was `bare' no malpractice insurance at all. This fact alone was perhaps the major stumbling block to any future settlement. If Murdock had been uninsured we doubt Cooper would have been so cavalier in ignoring us totally; all along he probably assumed Murdock's insurer would just fix the house and he'd be off the hook. If Nelson had also been insured it is unlikely both insurance companies would have opted for trial over such obvious defects. Instead, the builder's insurer sought to blame the uninsured professional and the third man the one we had the contract with refused to respond or help us in any way.
What rotten luck.