David Governo likes to talk about when he was 16 and rebuilt the engine on a 1964 Chevy Bel Air. “I've always liked taking things apart and putting them back together.” Today, the 49-year-old Boston attorney has a thriving law practice defending builders against construction defect claims brought by homeowners. Of the dozens of building-related cases he has taken, most have settled for terms that he calls “very favorable” to his clients, and he won the sole case that made it to court. He credits at least part of his success to his mechanical background. “I don't mind getting my hands dirty with the details of a case,” Governo says.
Most of the details he has his hands on concern mold and mois-lawyer at a conference on mold. He is on the editorial board of Indoor Environment Connections, a trade publication that reports on indoor air quality issues. “I don't pretend to be an expert, but I'm comfortable ture. In July, he was the only lawyer at a “summer camp” hosted by noted building scientist Joseph Lstiburek. Last year, he was the sole with complex scientific and technical issues that bog down a lot of other lawyers.” And his involvement in the industry has plugged him into a wide network of experts: “When I come into a case, I know exactly who to call.”
That network came in handy when he defended a North Carolina builder against a couple who claimed that their new house was infested with mold and that large parts of it would have to be rebuilt. They wanted their money back. Governo turned to someone whom few lawyers would have considered. “He has no advanced degrees, but he's a mold remediation expert with years of field experience.” The inspector found that the mold was isolated in a small part of the house and could be eliminated with very little work. “The owners ended up settling for [a very small amount of money],” says Governo.
Turnarounds like this are common, and they usually hinge on technical details. “I love this stuff because it's so complicated,” he says. “There are so many parties involved, and so many things going on, that you become the legal version of CSI. Very often, you come up with a preliminary theory of who screwed up what, but then things end up totally different.”
DON'T MAKE IT WORSE Does he think that most suits against builders are justified? “Some are, but others are just people trying to see if they can make some money.” But he says it's important to remember that in every case there's at least a perceived harm. “The homeowner may be [angry] at the builder about something unrelated, and this may be their only way of feeling better about the situation.”
Governo has seen plenty of builders make things worse by antagonizing already-disgruntled customers, when they could have easily diffused the situation by communicating with the people and listening to their concerns. “Many builders go into denial mode when they hear a complaint,” he says. “They have other things to think about, and so blow the complainers off in a way that irritates them, which leads to a lawsuit. But if the builder gives the complainer a little time and TLC, things usually don't get to the point where I have to be called.”
He finds similarities with medical malpractice. “The doctors who get sued aren't the doctors that screw up, because everyone screws up now and then. The ones who get sued are the ones who don't treat their patients well. If a doctor becomes friendly with the family and explains what's going on, that doctor is much less likely to get sued. It's the same with a builder.”
Builders also create liability by failing to manage customer expectations. For instance, Governo has seen cases where homeowners complained that their new house had a smell that was making them sick, even though the odor wasn't nearly strong enough to cause any illness. “Many building components include chemicals with extremely low odor thresholds, in parts per million, even though the permissible exposure limits are orders of magnitude larger. People with sickly predispositions think the smell is making them sick, even if it's not. And once they start talking with neighbors who have similar complaints, they start to think that they smell a rat. They will then imagine a conspiracy.” Governo says that builders can minimize such problems by telling the owners what to expect. “If people are brought into the process, they handle it a lot better.”
AN OUNCE OF PREVENTION Governo has concluded that a little preventative medicine can provide a lot of protection, so he now offers builders a liability audit service (www.liabilityaudit.com). The idea is to look at the potential liabilities in the way a builder does business.
Much of the audit focuses on the public statements builders make, whether on their Web sites or in their literature. “We tell them to be careful about proclamations of expertise. If you call yourself the roofing expert, you could be held to a much higher standard in court than another builder might. Or if you boast about using a new drywall with no cellulose, and you make a statement about how it will protect a house from mold, some people might interpret that as you claiming that your homes are mold-free.” Whether a particular statement gets a builder into hot water depends on the wording, and Governo hopes he can get builders to see the value of getting that wording reviewed. “Most companies aren't big enough to have a legal department, but for a minimal charge, I can make sure a potential advertisement isn't inviting trouble.”
Internal communications can also create liability, even when they're focused on solving problems. “Take the case where a builder is putting up houses so fast that paint is being put on when the concrete has had barely enough time to dry. If that builder sees a potential problem and compensates by changing from a 60- to a 90-day schedule, a crafty lawyer could use that as a basis for a negligence suit on behalf of people in more quickly built homes.” Whether the suit succeeds could have a lot to do with the communication among the builder's staff members. “You need a policy on how you handle that stuff internally in a company.”
At this point, his audit service only looks at legal issues. He says he's not ready to think about expanding the business to include experts that can evaluate a builder's construction processes. But he does say that having such an evaluation commissioned by a lawyer could be a big advantage.
“A lot of people don't want to have someone look at their areas of vulnerability because they're worried that it could be used against them.” But if the work is done by their lawyer's team, it's protected from disclosure by the attorney-client privilege. Given that fact, time will tell whether Governo can resist the urge to get under the hood.