Daily Development for Halloween, October 31, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

MECHANIC’S LIENS; LIENABLE WORK; CLEANING OUT CORPSE:  Does removal and disposal of bodily fluids that seeped from a decomposing dead body into carpet, sub-flooring and basement, and which were absorbed throughout the house constitute labor for the “repair” of the house within the meaning of mechanic’s lien statute?

Midwest Biohazard Services, LLC v. Rodgers, Indiana Court of Appeals, Case No. 41A05-0805-CV-290, 2008 Ind. App. LEXIS 2038 (Ind. Ct. App. 2008)

Midwest Biohazard Services (“Biohazard”) appealed from the trial court’s dismissal of its claim to foreclose on a mechanic’s lien.  The trial court had dismissed Biohazard’s complaint for failure to state a claim upon which relief could be granted, concluding that Biohazard’s services were merely cleaning and, as such, were not labor or materials for the “repairing” of the house within the meaning of the Indiana mechanic’s lien statute.

On October 5, 2001, Mr. Rodgers conveyed his residence in Johnson County, Indiana, to The Hugh C. Rodgers Trust (the “Trust”) but remained living there.  In 2007, he died while home alone [apparently, although we are free to speculate wildly as to cause of death, which is not mentioned in the opinion] and his body, undiscovered and decomposing where it lay for several days, leaked fluids that seeped into and through the carpet and sub-flooring, then down into the basement.  The decomposition of the body also caused the absorption of contaminants throughout the house.  After discovery of the body, Rodger’s son contacted Biohazard, obtained an estimate of $13,500 for the cost to remove and dispose of biohazard waste caused by the decomposition of the senior Mr. Rodger’s body.  Biohazard and the son then executed a contract, and the son paid $1,150 as a deposit for Biohazard’s services.  A few days later, Biohazard began the work, but after several days of performing decontamination
services, the son made Biohazard aware that he did not intend to pay for Biohazard’s work. [Interestingly, the opinion does not say why the son refused to pay, nor does it say whether Biohazard finished the work.]  Shortly thereafter, Biohazard filed a notice of its intention to hold a mechanic’s lien with the Recorder of Johnson County.

In December, 2007, Biohazard filed its complaint against the son, as well as against the Trust to foreclose on the mechanic’s lien, attaching a copy of the work description in the estimate that formed the basis for the services contract, which included “removal of carpet and pad in the hallway, living room, and dining room; cleaning and disinfecting the ceiling, walls, and floors throughout home; and cleaning and disinfecting the concrete floor in basement.”  The Trust and the son filed a motion to dismiss the portion of Biohazard’s complaint seeking foreclosure pursuant to Indiana Trial Rule 12(B)(6) (failure to state a claim upon which relief can be granted), and their motion was granted.   On appeal, Biohazard contended that the services it had allegedly provided in removing and disposing of the contaminants were “repairs” that fall within the scope of the Indiana mechanic’s lien statute.  The Trust and son responded that the services allegedly performed by Biohazard were merel
y cleaning services, which fall outside the scope of the statute.
The Indiana mechanic’s lien statute confers upon contractors and other persons the right to file a mechanic’s lien for, in relevant part, “performing labor or furnishing materials” for the “erection, altering, repairing or removing” of a house or other building or structure.  Ind. Code §32-28-3-1.  The court first stated that because the mechanic’s lien statute derogates common law, Indiana courts have strictly construed it in determining its scope, including when a person is entitled to acquire and enforce a mechanic’s liens. Therefore, the claimant has the burden to prove that his or her claim is within the scope of the statute.  Once the claimant has met this burden, however,  the statute is liberally construed to accomplish the statute’s remedial purpose.  Quoting from a 1913 Indiana Supreme Court opinion, the court pointed out that the “underlying motive” of mechanic’s lien laws is “justice and equity in dedicating, primarily, buildings and the land on which they are erected
to the payment of the labor and materials incorporated, and which have given to them an increased value” and that “[t]he purpose [of mechanic’s lien laws] is to promote justice and honesty, and to prevent the inequity of an owner enjoying the fruits of the labor and materials furnished by others, without recompense.”

Given that there is no dispute as to whether Biohazard was a contractor or person “performing labor” as contemplated by the statute, the court noted that the only dispute was whether Biohazard performed tasks that would qualify it for protection under the mechanic’s lien statute.  The trial court had concluded that Biohazard’s services were mere “cleaning” services, and not covered by the statute.  “Repairs,” however, are covered.  

“Repair” is not defined in the statute, so the court cited the rule of construction that “undefined words in a statute are given their plain, ordinary, and usual meaning,” as may be found in English language dictionaries.  Looking to Webster’s Third New International Dictionary (2002), the court first noted that the commonly used definition of “repair” as “to restore by replacing a part or putting together what is torn or broken” would not fit Biohazard’s alleged services.  However, “repair” also is defined as “to restore to a sound healthy state,” which, the court concludes, clearly includes the decontamination of the house performed by Biohazard.  Seeing no reason why the mechanic’s lien statute’s use of the word “repair” should not include the dictionary’s second “plain, ordinary, and usual meaning” of restoring property “to a sound healthy state,” as well as the more common definition of restoring it by “replacing a part or putting together what is torn or broken,” the court c
oncludes that Biohazard’s alleged house restoration services required in the wake [pun intended] of Mr. Rodger’s undiscovered decomposed body are literally comprehended by the mechanic’s lien statute.

Turning to policy grounds, the court reprised the 1913 Indiana Supreme Court opinion to the effect that the purpose of the mechanic’s lien statute “focuses largely on whether the activities performed upon the property increased the value of that property.”  “It takes no stretch of the imagination, ” said the court, “to recognize that a buyer would be willing to pay more for a house that was free from biohazard contaminants than she would be willing to pay for the same house in a contaminated state.” Thus, the services allegedly performed undoubtedly increased the value of the house.  In conclusion, the court reversed the trial court, holding that Biohazard has stated a claim upon which relief can be granted and the motion to dismiss was improvidently granted.

Reporter’s Comment 1:  It is unclear whether the opinion might be extended to cover “ghostbusting” and exorcism or other such services to eliminate spirits, ghosts, goblins or other unwanted entities from houses and other structures (elimination from persons presumably would not qualify, unless the person is so attached to the structure as to constitute a fixture).  There is legal precedent that the presence (or reputed presence) of such entities may adversely affect value.  Stambovsky v. Ackley, 169 A.D.2d 254, 572 N.Y.S.2d 672 (NY Sup.Ct. 1991) (Noting that if caveat emptor applied, the buyer didn’t have "a ghost of a chance" of winning, the court observed that even the "most meticulous inspection and search would not reveal the presence of poltergeists in the premises or unearth the property's ghoulish reputation in the community."  Because the seller previously had encouraged publicity fostering the belief that the house was haunted and took advantage of the out-of-town buyer'
s ignorance by failing to inform him of the house's reputation, which the court considered an adverse condition not discoverable by a reasonable inspection, the court granted rescission.  Buyer got his money back and seller got the ghost.  No, I did not make this up.)

Reporter’s Comment 2:  The court seems to accept the view that mere cleaning, as such, does not constitute an alteration or repair of property under the mechanic’s lien statute, although “restoring to a sound healthy state” could certainly encompass cleaning services of a lesser nature than biohazard contamination removal.  And, as to the issue of enhancing value, any broker will attest that an unclean house or building will fetch a lower price than one that is clean. 

There seems to be a dearth of Indiana law on the “clean” vs. “repair” distinction, but a quick search turned up cases in Ohio and Pennsylvania where courts have held that their mechanic’s lien statutes do not cover cleaning services.  Midland-East Sales Corp v. Adams Sewer, Inc., 1985 Ohio App. LEXIS 7329 (dredging and removing debris from storm sewers do not fall within plain and ordinary meaning or “alter” or “repair” in mechanic’s lien statute); King’s Oak Liquidators v. Bala Cynwyd Hotel Associates, 405 Pa. Super. 250; 592 A.2d 102 (cleaning, verifying inventory, securing buildings, cleaning supplies, security services, including the cost of chains and locks, do not qualify under Pennsylvania mechanic’s lien statute: “security services performed during construction of a building are not protected by the Mechanics' Lien Law.  Metropolitan International v. Union Investment Co., 17 Pa.D. & C.3d 519 (Phila. 1981).  It has also been held that the removal of trash as part of a contr
act to demolish a building is not protected.  Jan-Lee Corp. v. Thompson Realty Co., 3 Pa. D. & C.2d 457 (Phila. 1954)”).  Of course mechanic’s lien statutes in some other states that did not turn up may be more liberally worded or construed.

Editor’s Comment 1: For a related case, see Kennedy v. Kidd, 557 P. 2d 467 (Okla. App. 1976), where the court found that a deceased tenant’s estate was not liable to the landlord for similarly grim clean up costs when the tenant died alone in the apartment and was not discovered for a week.  (In the summer, in Oklahoma).  Although a tenant owes a landlord the duty to return the premises in a reasonable condition upon lease termination, this liability does not extend to the tenant’s estate when the tenant dies on the premises. (???)

Also see: Yates v. Kaplan, 347 N.Y.S.2d 543 (N.Y. Misc. 1993) (Where statutory tenant dies in apartment, companion/caretaker residing with him, who moves out during clean up, cannot be locked out thereafter without summary possession action, even though she has no further rights of possession.)  This case needs to be read as one of the great epics of judicial literature - written by extremely colorful law professor, judge and former thespian, Irving Younger.

The Reporter for this item was Rory O’Bryan of the Indianapolis Bar.

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