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No Waiver of Parents’ Recovery for Mold Injury

A family suing for injuries to their two children from exposure to mold from a leaking skylight when they were house-sitting for defendants, cannot recover through the children’s suit any medical expenses associated with their alleged mold exposure, says a Charlottesville U.S. District Court.

Defendants had left the home and moved to Florida, where they currently reside. Under the parties’ agreement, in exchange for rent-free occupancy, plaintiffs would pay the utilities, provide security by their presence and advise defendants of any problems that might arise with the residence, according to plaintiffs’ complaint. Plaintiffs allege they informed defendant owners about the leaking skylight, but defendants failed to have repairs made. Plaintiffs seek $500,000 in damages.

Plaintiffs brought two separate but closely related actions for damages in state court, which were removed to this court and consolidated.

Plaintiffs’ suit is not barred by the statute of limitations. They filed their original complaints in state court on Aug. 15, 2003. An order of nonsuit was entered June 15, 2009. Plaintiffs recommenced their actions in circuit court in November 2009. The statute of limitations was tolled by the commencement of the nonsuited action in 2003, and plaintiffs had six months after the June15, 2009 nonsuit to recommence the action, which they did.

In the alternative, plaintiffs argue that under Moses v. Akers, 122 S.E. 2d 864 (Va. 1961), plaintiffs are barred from recovering any medical expenses associated with their alleged mold exposure. Defendants argue that only plaintiffs’ parents, and not the infant plaintiffs themselves, had the ability under the law to recover medical expenses from the outset.

Plaintiffs contend the parents impliedly waived their right of recovery in favor of their infant children. Their argument proceeds from the procedural history of the case, and reasons that since the parents did not seek to recover for the children’s medical expenses in their – the parents’ – own cases, they have impliedly waived their right to recovery in accordance with Moses. Virginia law, however does not support such a finding.

Despite the parents’ filing of separate lawsuits that did not include a claim for their children’s medical expenses, plaintiffs have not demonstrated that their parents clearly and convincingly waived their ability to recover those expenses. I find plaintiffs’ parents have not impliedly waived their right to recover medical expenses.

Plaintiffs’ mother averred that defendants’ claim that she did not waive the right to recover medical expenses incurred by the children was “untrue.” Defendants argue the mother was unable to waive the right to recovery through the affidavit because that right to recovery had already been lost. Defendants argue plaintiffs’ parents lost the ability to recover medical expenses when the parents’ claim was dismissed with prejudice at the state court level.

I need not decide whether res judicata bars plaintiffs’ parents from now expressly waiving their purported right to recover medical expenses, because the mother filed the affidavit in her name only. The father has filed no companion affidavit and the mother’s affidavit does not purport to waive the father’s right of recovery.

A waiver of a right to recovery must be express and by both parents, unless it is shown that only one parent is responsible for the children’s medical bills. Plaintiffs have made no suggestion the mother is singularly responsible for plaintiffs’ medical bills, or that she has the authority to unilaterally waive husband’s right to recovery. I find that plaintiffs’ parents have not expressly waived their right to recovery, if any such right existed.

Although the statute of limitations does not bar plaintiffs’ claims for medical expenses, such claims are barred because plaintiffs’ parents have neither expressly nor impliedly waived the right to recovery that vested with them, and not with the children.

Partial summary judgment for defendants.

Kristensen v. Spotnitz (Moon) No. 3:09cv00084, Sept. 26, 2011; USDC at Charlottesville, Va. VLW 011-3-511, 9 pp.

VLW 011-3-511

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