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Mayer v. STO Industries9/10/1999
Kurtis R. and Pamela Mayer filed a lawsuit against Sto Industries, Inc. (Sto) alleging that Sto's product, synthetic exterior stucco, was defective and that application of the product to their newly- constructed home caused damage to the structure. The matter was tried to a jury, which found in favor of the defendant. After trial, the Mayers obtained a copy of a memorandum written by a Sto manager that they allege contains an admission of liability.
The Mayers then moved for a new trial based upon the newly discovered evidence. The trial court denied their motion and declined to rule on the Mayers' later motion for sanctions under CR 37 for discovery abuse. We reverse and remand for a new trial.
I. FACTS
In 1989, the Mayers constructed a home on Dash Point in Federal Way, on which they used a synthetic stucco exterior finish manufactured by Sto, known as an Exterior Insulation Finish System (EIFS). In 1991, the Mayers discovered moisture penetration around windows and had to replace them. In 1994, the Mayers discovered substantial dry rot damage that weakened the structure.
On April 13, 1995, the Mayers filed a lawsuit against Sto, among others, alleging that the Sto "product {was} defective, {and} was defectively applied{.}" Clerk's papers at 446. On June 23, they filed an amended complaint, which stated:
In 1994, Mayers discovered deterioration of the wood trim of the windows and the substructure of the exterior walls. From inspections performed to date, it appears that the caulking in 1992 entrapped the water which had been causing the rust problem. The entrapped water in turn has now caused deterioration of the wood trim of the windows and the substructure of the exterior walls.
The cause of the original water penetration is difficult to determine because of the caulking. However, it appears that the probable cause of the original water penetration is either defective Sto sealants or defective Marvin Windows, or some combination of those factors.{}
On September 20, 1995, the Mayers served interrogatories and requests for production of documents upon Sto. The discovery requests and responses pertinent to this appeal are as follows:
INTERROGATORY NO. 12: Identify any documents relevant to the facts of this claim or to the issue of damages sustained by the plaintiff and give a brief description of the information contained in that document.{}
Sto objected on the basis that the question is "vague and calls for information protected by the work-product and or attorney-client privileges." Clerk's papers at 16.
INTERROGATORY NO. 23: Are you aware of any failures, or complaints of failure, on any of the windows in question or walls in question during the preceding 10 years. The term "failure" means instances in which the particular component failed to meet its expectations either through allowing leakage of water, separation of joints, failure of structural integrity or otherwise. As to each instance, state the following: . . . .{}
Sto responded:
There have been no water penetration failures which have been attributed to Sto product. We have received the following complaints on water penetration for walls with wood frame construction with a Sto system {using} StoSeal in the last several years:
Sadowsky residence, constructed in 1989, located on Long Island, NY, on the ocean. Complaint is in litigation. . . . There has been no modification to the product or is any contemplated as a result of this complaint. Water penetration is from multiple sources, none being the result of a Sto product failure.
Wymann residence, co
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