Kerlavage v. America’s Home Place, Inc., 2019 Va. Cir. LEXIS 39 (Spotsylvania Cnty. Cir. Ct. Mar. 11, 2019)
Jeffrey Kerlavage (“Kerlavage”) contracted with America’s Home Place, Inc. (“AHP”) to build a home. Construction began in October of 2014. AHP hired Indoor Comfort Experts, LLC (“ICE”) to install an HVAC system, Builder Services Group, Inc. dba Cary Quality’s (“Cary Quality”) to install a vapor barrier in the crawl space, Vangorder Contracting, LLC (“Vangorder”) for the carpentry, Brandonbilt Engineering, P.C. (“Brandonbilt”) to waterproof the home and lay a foundation drain in the crawlspace, and PermaTreat Pest Control Company (“PermaTreat”) to remediate mold in the home. Kerlavage alleged that AHP and its subcontractors failed to properly perform their respective responsibilities and negligently created an unsafe condition in the home, which resulted in personal injuries, physical and emotional pain and suffering, medical expenses, and expenses related to repairing defects and mold remediation.
The Court sustained the defendants’ demurrer to Count I and Count II (actual and constructive fraud) because Kerlavage failed to allege any factual allegations relating to AHP’s alleged misrepresentation beyond general accusations and the statements made by AHP’s employee were individual statements of opinion reflective of his experience. The Court sustained the defendants’ demurrer to Count III (violation of the Virginia Consumer Protection Act) for the same reasons, i.e. Kerlavage did not specify with particularity who, when, or any other specific circumstances under which the alleged misrepresentations occurred. The Court denied the defendants’ demurrer to Count VII (negligence), except as applied to Vangorder, and found that Kerlavage’s Amended Complaint included additional facts that supported a negligence cause of action. The Court reviewed the Source of Duty Rule and held that the relationship between the parties qualified as one of the circumstances where both a contract claim and a tort claim may exist because the Amended Complaint adequately stated a cause of action under the general common law negligence principles to exercise due care to avoid injuring others and to avoid creating a dangerous condition in the home.