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SUPERIOR COURT
OF THE

STATE OF DELAWARE E. SCOTT BRADLEY
JUDGE 1 The Circle, Suite 2 GEORG ETOW N, DE 19947

December 10, 2012 Dean A. Campbell, Esq. 401 North Bedford Street P.O. Box 568 Georgetown, DE 19947 Mary E. Sherlock, Esq. Weber, Gallagher, Simpson Stapleton, Fires & Newby, LLP 19 South State, Suite 100 Dover, DE 19901

RE:

Dr. Stanley Friedler & Gail Friedler v. R.A. Bunting Company, et al. C.A. No: S08C-06-011 ESB

Dear Counsel: This is my decision on the Motion for a New Trial filed by plaintiffs Dr. Stanley Friedler and Gail Friedler in this case involving the alleged negligent construction of their home by defendant R.A. Bunting Company, Inc. The Friedlers own the oceanside house located at 29834 Ocean Ridge Drive, Bethany Beach, Delaware. Bunting built the house in 1996. The Friedlers purchased it soon thereafter for $610,000. In 2007, the Friedlers noticed that a portion of the exterior of their house was starting to rot. Upon further examination, the Friedlers learned that a fairly large portion of their house was rotting from the frame out to the cedar siding. The Friedlers spent approximately $106,000 to repair their house and then filed a lawsuit against Bunting alleging that it had negligently constructed the house, allowing water to penetrate that area of the house between the frame and cedar siding and resulting in substantial rot to the house. At trial, the Friedlers offered evidence establishing that Bunting (1) had not installed flashing around the top and sides of the windows, (2) had not put sealant around the windows, (3) had not overlapped and taped the Typar house wrap, and (4) had not applied a coating to the underside of the

cedar siding. The Friedlers also offered evidence establishing that the failure to do these things allowed water to penetrate the exterior of the house and cause the house to rot. Despite this evidence, the jury concluded that Bunting did not negligently construct and/or supervise the construction of the house and did not violate the Sussex County Building Code when it built the house. The Friedlers then filed a Motion for a New Trial. The standard for granting a new trial in these circumstances is well-established. Standard of Review (O)n weight of evidence motions we hold that a trial judge is only permitted to set aside a jury verdict when in his judgment it is at least against the great weight of the evidence. In other words, barring exceptional circumstances, a trial judge should not set aside a jury verdict on such grounds unless, on a review of all of the evidence, the evidence preponderates so heavily against the jury verdict that a reasonable jury could not have reached the result.1 I have concluded that the jury's verdict is against the great weight of the evidence. The Friedlers relied on Steven Szypulski to establish many of the critical portions of their case against Bunting. Szypulski is a highly-qualified expert regarding the construction of residential houses in Sussex County. In this case, in addition to offering expert opinions on the proper method of construction and causation, Szypulski testified about how the house was constructed. He was able to do this because he was present for much of the time when the rotting portions of the house were removed and repaired. Thus, Szypulski was testifying with first-hand knowledge when he testified that Bunting ( 1) had not installed flashing around the top and sides of the windows, (2) had not put sealant around the windows, (3) had not properly overlapped and taped the Typar house wrap, and (4) had
1

Storey v. Camper, 401 A.2d 458, 465 (Del.1979). 2

not applied a coating to the underside of the cedar siding. This evidence was not persuasively challenged by Bunting at trial. Szypulski also testified that the failure to do these things was a violation of either the Sussex County Building Code and/or the various manufactures' installation instructions. Szypulski testified that both the Sussex County Code and the manufacturer's installation instructions for the Anderson windows required the windows to be flashed at the top and sides and sealed. Bunting argued that pieces of drip cap trim designed for vinyl siding applications were used and were adequate. However, this is not what the Sussex County Code and the manufacturer's instructions required. Szypulski testified that the manufacturer's instructions for the Typar house wrap required it to be overlapped 6" in some places and 12" at the inside and outside corners and that the seams were to be taped. Bunting argued that the overlapping was adequate and that if it was not done, then the problems should have appeared sooner. The problem with Bunting's argument is that it is inconsistent with Szypulski's first-hand observations and the fact that the house was rotting from the frame out to the cedar siding, making it extremely difficult to see that there was a problem. Indeed, since the extent of the rotting was not discovered until the cedar siding was removed, the problem had probably existed for many years before the Friedlers even saw it. Szypulski testified that the industry standard, as set forth by the Western Red Cedar Lumber Association, required all surfaces of the cedar siding to be sealed. Bunting argued that the problem was not its failure to do this, but that the Friedlers did not maintain their house well enough. However, the evidence was that plaintiffs regularly had the house painted. 3

Szypulski also testified that the windows, Typar house wrap, and cedar siding acted as an envelope around the house that was designed to prevent water from getting behind the cedar siding and that Bunting's failure to properly construct the envelope allowed water to get behind the cedar siding and cause the house to rot. Bunting's expert agreed with this concept, but argued that Bunting did nothing wrong. I disagree. I believe the great weight of evidence in this case established that Bunting did not do certain things that were designed to protect the plaintiffs' house from water and that its failure to do these things allowed water to get behind the cedar siding and cause the house to rot. Conclusion The Plaintiffs' Motion for a New Trial is granted. IT IS SO ORDERED. Very truly yours,

/e/ E. Scott Bradley E. Scott Bradley ESB/sal

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