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Krause v. Reyelts6/5/2002
Considered on Briefs Apr 22, 2002; Opinion Filed Jun 5, 2002
[ ] Wayne and Kathy Cooper-Krause, (hereinafter referred to as Wayne, Kathy, or Krauses as the context requires), sued their general contractor, David Reyelts (Reyelts). They claimed Reyelts was directly and vicariously liable for construction defects in their house. Reyelts raised the affirmative defense of release. Reyelts claimed that he was released because Krauses released Reyelts's subcontractor. The trial court agreed and granted summary judgment in favor of Reyelts. We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
[ ] On March 5, 1993, Krauses entered into a contract with Reyelts for the construction of a home in Rapid City. Reyelts subcontracted with Melvin Geidel Excavation (Geidel) to perform the excavation work on the project. The excavation work included digging the foundation and footings, back filling, and final grading.
[ ] Construction was completed in August of 1993. About a month later, Krauses noticed heaving and cracking concrete in the basement. In October of 1993, a leaking sewage pipe was discovered under the driveway. The defect in the pipe was caused by Geidel's improper backfill and compaction.
[ ] As the general contractor, Reyelts attempted to fix the defects. Reyelts spent $18,712.32 between October 1993 and February 1995 repairing the problems caused by the cracked sewer pipe and the defective excavation work performed by Geidel. Notwithstanding those repairs, new problems began to appear in the basement, in the patio, and in the garage floor and foundation.
[ ] Geidel's liability insurance company ultimately agreed to reimburse Reyelts for the initial repairs. In return, Wayne Krause and Reyelts signed a release in favor of Geidel. The release provided:
Reyelts Construction and Wayne Krause ... hereby release and discharge Melvin Geidel Excavation ... from any and all claims, demands, damage, lawsuits, and causes of action arising from Melvin Geidel Excavation's work ... which include: 1) A hole in the sewage pipe, which was back filled by Melvin Geidel Excavation ... and 2) Improper final grading north side of the garage ... . (emphasis added).
Kathy witnessed the release, but she did not sign it in her individual capacity.
[ ] After receiving the release, Geidel's insurer paid Reyelts for the repair work Reyelts performed. On the same day the release was signed, the Krauses entered into a separate contract in which Reyelts agreed to correct the new problems. The new repairs specifically included sealing a concrete wall, constructing two swales outside the west side of the garage, replacing a concrete section of the basement floor, monitoring a garage door for repair, installing drain tile, and inspecting for water after the tile was installed. Except for the replacement of a portion of the basement floor, Reyelts completed this additional work.
[ ] Even after Reyelts completed these additional repairs, Krauses continued to experience problems. Krauses claim that the following "additional" problems arose: cracking and heaving of the concrete in the basement; cracking of the concrete driveway; cracking of the south and west foundation walls of the garage; settling and cracking of the concrete patio; pooling of water in the garage; cracking in the sheetrock; and doors not closing properly.
[ ] These latest problems were not fully repaired by Reyelts. Therefore, Krauses hired Ron Huntley (Huntley), a concrete contractor, to correct them. During those repairs, Huntley noticed more construction defects. Two of those defects included a void of at lea
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