Lizzy Fitzsousa Apr. 28, 2014, 5:58pm

NEW ORLEANS- – A local couple is suing their contractor claiming their new home was infested with a wood-destroying insect.

David and Michelle McKeon filed a lawsuit against Jim Terrell Construction LLC, H&M Pest Control Corp., Ignacio Garcia and Atlantic Casualty Insurance Company in the Orleans Civil District Court on Jan. 27.

The McKeons claim improper construction led to termite infestation and severe wood rot to their home.

They allege that H&M Pest Control failed to pre-treat the soil before the slab was poured for their home, and that such failure violates Louisiana pest control law and applicable building standards.

The suit also claims that in April 2009, the McKeons obtained a certificate of occupancy and hired H&M to continue doing annual termite treatment. The suit alleges that annual insect reports as late as March 2013 claimed the structure was termite free. However, the McKeons found evidence of termites when H&M was dealing with a moth infestation in the spring of 2013. The suit claims H&M knew or should have known of a wood destroying infestation resulting from its failure to pre-treat the soil beneath the slab. Despite this, they continued to collect money from the McKeons. They are accused of withholding the truth regarding the lack of pre-treatment of the soil beneath the slab, which constitutes fraud and/or negligent misrepresentation.

According to the suit, Terrell hired Garcia to frame the structure and install the windows, but he failed to install drip caps and corner gaskets on the windows as required by the installation specifications prepared by the window manufacturer. The petitioners claim this caused water to enter the structure causing substantial wood rot and major structural defects. This exacerbated damages caused by termites and other wood destroying insects, the suit claims.

The suit alleges that Terrell was notified of damages, and while he has been out to property to investigate and determine the cause of the damages, he has taken no steps to repair.

The plaintiffs are represented by attorneys Albert J Nicaud and Jeffrey M. Siemssen of Metairie.

On March 27, Atlantic, Garcia’s insurer, answered the suit, claiming their insurance coverage does not cover property damage due to work that was improperly performed on it. The policy allegedly excludes coverage of independent contractors and excludes damages resulting from mold, bacteria, virus and organic pathogens.

The insurer is represented by James A. Prather and Katherine F. Ogburn of Galloway, Johnson, Tompkins, Burr & Smith APLC.

Terrell answered the suit on April 10, arguing that the contract between Terrell and McKeons binds them to arbitrate any dispute or difference, especially concerning the NHWA. Because the McKeon’s failed to submit to binding arbitration first, they claim the matter is premature.

Jim Terrell Construction is represented by J. Scott Loeb of the Loeb Law Firm of Mandeville.

Case is assigned to Division M Judge Paulette R. Irons.

Case no. 2014-00962.

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