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Heiken v. Ricigliano

Superior Court of New Jersey, Appellate Division

August 29, 2013

BARBARA HEIKEN and KENNETH GOLDMAN, Plaintiffs-Appellants/ Cross-Respondents,


Argued October 3, 2012

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5142-07.

Richard S. Mazawey argued the cause for appellants/cross-respondents (Mr. Mazawey, attorney; Mr. Mazawey and Celestino A. Labombarda, on the briefs).

Susan A. Lawless argued the cause for respondents/cross-appellants Servpro of N.W. Bergen & Southern and Eastern Rockland Counties (Purcell, Mulcahy, O'Neill & Hawkins, L.L.C., attorneys; Ms. Lawless, of counsel; Katherine Lyons, on the briefs).

Brian Gallagher argued the cause for respondents/cross-appellants Thomas Freeman and the Giglio Agency (Margolis Edelstein, attorneys; Colleen M. Ready, on the brief).

Before Judges Axelrad, Nugent and Haas.


Plaintiffs, Barbara Heiken and Kenneth Goldman, appeal from the order that dismissed with prejudice following a Lopez[1]hearing their complaint against defendants Servpro Industries, Inc.[2], Servpro of Northwest Bergen and East Rockland Counties, Thomas Freeman and the Giglio Agency.[3] Servpro cross-appeals, arguing that in the event of a remand, Heiken and Goldman's attorney-client privilege as to Ricigliano should be deemed waived. Freeman and the Giglio Agency also cross-appeal from certain rulings the trial court made "against [their] position[s] concerning issues they raised concerning the Lopez hearing." Having considered plaintiffs' arguments in light of the record and controlling law, we affirm.


We derive the following facts from the Lopez hearing. In 2000, plaintiffs lived together in a condominium duplex in Mahwah. In February, the eave in their roof leaked and water damaged a wall and carpet in their bedroom. Heiken called her insurance agent, Thomas Freeman, who told her to call Servpro to remediate the damage caused by the leak. Servpro responded and the matter was resolved uneventfully.

Five months later, in July 2000, the condominium was severely damaged by water that poured out of a broken washer hose. Heiken was away in Connecticut when she received a 10:00 p.m. call from Goldman, who had remained in the condominium. He told her water was running through the lights and smoke detectors, and that a significant amount of water had accumulated throughout the unit. Heiken drove home to find the entire condominium filled with water. She estimated that approximately eight inches of water filled the unit. Paintings had been "blown off walls" and were floating in water. Oriental rugs that were one hundred years old were completely under water. Antique furniture sat in eight-inch-deep water. In short, the condominium was a disaster.

Servpro responded and removed the standing water, but plaintiffs were unable to agree with their insurance company, Chubb, on the extent of the water damage to their home and the cost to repair that damage. Due to the disagreement, plaintiffs hired defendant Joseph Ricigliano, who filed a declaratory judgment action on October 30, 2000.

In the complaint, among other allegations, plaintiffs claimed to "have been residing in an unsafe, unhealthy condition based upon the extensive damage to their residence." While the lawsuit was pending, Ricigliano wrote to the court on November 17, 2000, in an effort to persuade the court to take emergent action in response to an order to show cause he had filed. In the letter, Ricigliano asserted:

While I cannot certify that the conditions pose a risk to my client's [sic] lives, the mold, continually grows back on the walls from the extensive damage, certainly poses an extensive health risk and therefore, I am seeking that this matter be allowed to proceed as an Order to Show Cause.

The previous month, Heiken had begun to experience symptoms she characterized as "bizarre." During a trip to Costa Rica, her ankles swelled. Following that trip, the symptoms became more severe as they persisted throughout 2001. The symptoms included chronic itching in her legs, rhinitis, a stuffy nose, a sore throat, nausea, vomiting, and headaches. She began consulting with doctors early in 2001. In August 2001, a physician in Manhattan diagnosed her condition as a reaction to mold. By that time, however, plaintiffs had settled the lawsuit against Chubb. In February 2001, plaintiffs had received $57, 650 "in full payment for making [a] Release" of their insurance company, Chubb, the condominium association's insurance company, and the condominium association's managing agent.

Long after the settlement, Heiken continued to receive medical treatment for her symptoms. After contacting Dr. Adrienne Buffaloe for an appointment, and before her August 1, 2001 consultation with Dr. Buffaloe, Heiken completed an "Environmental Survey." Heiken reported in the survey that following the flood in her townhouse, she actually saw mold. She also reported that there was a mold smell everywhere and that the house had a characteristic odor of "mold/mildew." Contrary to those statements that she had actually seen mold, Heiken testified at the Lopez hearing that she had never seen mold in her residence. She said she reported the mold on the survey at the suggestion of the person who had sent her to Dr. Buffaloe.

Following the August 1, 2001 consultation, Dr. Buffaloe recommended that Heiken undergo "skin testing and desensitization (allergy shots) for molds." He also recommended that Heiken test the home for mold. On the same day, Dr. Buffaloe wrote to Dr. Ronald Ruden and explained that "Barbara Heiken Goldman has been exposed to toxigenic mold from the flooding of her home on July 27, 2000. She exhibits a constellation of symptoms consistent with mold contamination."

Three months later, on November 5, 2001, Heiken completed an "Allergy & Environmental History Questionnaire" for Dr. Joseph Wojcik, Diplomate in Allergy, Asthma & Immunology. In that questionnaire, Heiken reported that she seemed to be allergic to mold, and that mold odors were present in the closet of her bedroom and in the living or family room. During her testimony at the Lopez hearing, Heiken testified that she reported the mold odors on Dr. Wojcik's form at the suggestion of the person who had referred her to Dr. Wojcik.

When plaintiff formally consulted with Dr. Wojcik on December 17, 2001, he recommended that she test for mold in the four most frequently used rooms in her home, including the basement. Dr. Wojcik suggested that if Heiken chose to remain in her home, she would have to have extensive work done to clean up the environment and remove the mold. Dr. Wojcik recommended that she consult with an expert and identified Wayne Tusa as one such expert.

Plaintiffs retained Tusa, a principal of Environmental Risk and Loss Control, Inc., who completed a mold evaluation of their condominium on May 6, 2003. In a letter to Heiken dated June 12, 2003, Tusa reported:

In this case, it is clear the washer hose failure resulted in substantial flooding on most of the second floor and throughout the first floor. Unfortunately[, ] most of the construction materials that were wetted as a consequence of the flooding where not thoroughly dried out or removed within 24 to 48 hours - at which point mold growth typically begins. While no mold sampling was done in the interim between the leak and this mold evaluation, it is almost certain that the presence of large quantities of wet construction materials resulted in substantive mold growth, not only in visible locations, such as your closets, but in inaccessible locations behind walls, above ceilings, below floors, etc. While most of the wetted construction materials appear to have substantively dried out since the flooding, it appears that mold growth which is still present in inaccessible locations is resulting in significantly above background levels of viable and total mold spores in indoor air. Unfortunately, these elevated mold exposures appear to be the most likely cause of your physical and medical symptoms.

Tusa recommended as a "prudent mitigation approach . . . removing and replacing all substantively wetted or cosmetically damaged construction materials." He included as materials that should be removed "the floors and bottom twenty[-]four inches of the walls in all of the affected rooms on the second floor and all of the ceilings, floors and walls on the first floor." He also recommended testing all adjacent surfaces and other remedial measures.

Goldman testified at the Lopez hearing that he moved into the condominium in the summer of 1998 and purchased it on February 8, 1999. He knew that Heiken had maintained a renter's insurance policy issued by Chubb and placed through defendant Giglio Agency. When Goldman purchased the ...

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