Pro Se Lawsuit Against First American Home Warranty Corporation

IN THE CIRCUIT COURT OF FAULKNER COUNTY ARKANSAS

CIVIL DIVISION

LAURA HAMMETT, an individual                                                 PLAINTIFF

V.                                                                                                 

FIRST AMERICAN HOME WARRANTY

CORPORATION, a California Corporation;

NICHOLSON’S HEATING AND AIR

CONDITIONING, INC., an Arkansas

Corporation; SMARTCOOL OF

ARKANSAS, INC., an Arkansas Corporation,

DOES 1-99                                                                                   DEFENDANTS

Case No. 23CV-20-631

COMPLAINT

AND

DEMAND FOR JURY TRIAL

                Comes now, the Plaintiff, Laura Hammett, (hereinafter referred to as “Hammett” or “Plaintiff”), in pro se, who in support of this Complaint, states and alleges as follows:

PARTIES, JURISDICTION AND VENUE

1.      Hammett is an individual and is a resident of Faulkner County, Arkansas, and was at all relevant times that gave rise to this lawsuit.
2.      First American Home Warranty Corporation (“FAHW”) is incorporated in California, has an agent for service of process in Fayetteville, Arkansas and provided home warranty policies in Faulkner County at all relevant times of the events that gave rise to this lawsuit.
3.     FAHW is vicariously liable for the actions of its employees, agents and contractors by the theory of Respondeat Superior.
4.       Nicholson’s Heating and Air Conditioning, Inc. (“Nicholson”) is incorporated in the state of Arkansas and did business in Faulkner County at all relevant times of the events that gave rise to this lawsuit.
5.      Nicholson is vicariously liable for the actions of its employees, agents and contractors by the theory of Respondeat Superior.
6.       Smartcool of Arkansas, Inc. (“Smartcool”) is incorporated in the State of Arkansas and did business in Faulkner County at all relevant times of the events that gave rise to this lawsuit.
7.     Smartcool is vicariously liable for the actions of its employees, agents and contractors by the theory of Respondeat Superior.
8.      Doe defendants 1 to 99 may be determined through discovery.
9.      The Faulkner County Circuit Court shall have original jurisdiction of all justiciable matters herein, which are not otherwise assigned pursuant to the Arkansas Constitution, pursuant to Ark. Code Ann. § 16-13-201.
10.      Venue is proper in Faulkner County, Arkansas, pursuant to Ark. Code Ann. § 16-60-101. A substantial part of the events or omissions giving rise to the claim occurred within Faulkner County and the plaintiff resided in Faulkner County at the time of the events or omissions giving rise to the cause of action.
11.      This lawsuit involves the following issues: (1) Fraud in the inducement; (2) Rescission; (3) Promissory Estoppel; (4) Negligence; (5) Reckless Endangerment; (6) Bodily injury and (7) outrage.
12.      This action was commenced within the applicable statute of limitations as the statute of limitations for promissory estoppel, fraud in the inducement, negligence and reckless endangerment causing personal injury and outrage claims are each three years (Ark. Code Ann. § 16–56–105); and no events giving rise to the suit took place more than two years ago.

Factual Background

1.      Plaintiff obtained a home warranty through escrow on the purchase of her home. Defendant First American Home Warranty Corporation sent a “Contract and Home Warranty Guide”, (“the Contract”), a true and correct copy attached hereto as exhibit 1.  It states, in part:

“First American Home Warranty is here to offer you peace of mind when covered breakdowns occur and to provide you with quality service when you need us most.”

1.     When Plaintiff’s HVAC broke down only a week after moving into her home, Defendant FAHW did not replace or repair the unit.
2.     Instead, in a ruse to keep Plaintiff’s money and not perform the service they received consideration for, the Defendants conspired to defraud the Plaintiff by denying the claim on the pretextual ground that the fault was a pre-existing condition.
3.      The Plaintiff asked to rescind the contract conditionally the day she read the adhesion contract mailed to her after FAHW was paid.  She would have replaced the unit herself immediately and gone to arbitration to be reimbursed for the cost of replacement on the theory of fraud in the inducement. She should have been awarded the cost of replacement minus the cost of the policy.
4.      Instead, FAHW promised they would fix or replace Plaintiff’s HVAC.
5.      When FAHW and its contractor Nicholson found they could not fix the unit cheaply, they concealed the fact from Hammett. They strung her along and gave her the run-around. Ultimately, they did what can be described as “gaslighting” Hammett.
6.      The result was to cause Plaintiff not only aggravation and loss of income, but physical injury that may be permanent.
7.      One of Plaintiff’s businesses is restoring homes and reselling them. She has also restored a church and a community center building for charity.
8.      In anticipation of working in the Central Arkansas area, the plaintiff purchased two homes in February and March of 2018. (All dates are 2018 unless specified.) The first in North Little Rock was for her son to live in with his small family and had an area downstairs for Plaintiff to stay in, like a “mother-in-law unit”. This property is called “the NLR house”.
9.     Plaintiff decided to live with her boyfriend “Mike Hammett”. She bought the second house on Lake Conway because it had more privacy and space for their boats and R.V. This property is called the “Gold Lake house”.
10.     The address of the Gold Lake house is 16 Gold Lake Club Road, Conway, Arkansas, 72032.
11.     Both homes were “move-in condition”. Plaintiff was represented by the same Realtor on both purchases. The Realtor suggested Plaintiff use First American Home Warranty to buy a policy that was supposed to cover unforeseen problems with the HVAC and other systems in the house.
12.     Plaintiff was a real estate broker herself for decades, actively selling homes in the late 1990s until about 2008. She had listened to several presentations by Defendant FAHW during that period and suggested buyers she represented ask for the sellers to buy a policy for them.
13.     The information that she passed along included a story she heard of how a dishwasher broke in the first weeks of owning a home and the home warranty company replaced it with a brand new one.
14.     She also repeated that sellers were not as likely to knock $400 off the price of the home as they were to buy a $400 policy.
15.     The policy was supposed to give peace of mind to the buyer and seller that in the unfortunate event of a failure of a unit in the home, costly and time-consuming litigation would not be required to affix blame between buyer and seller.
16.     Both Mike and Laura Hammett have been in the building industries for decades, but their home is their sanctuary and they don’t have the time or energy to fix problems in their own home…like the cobbler’s kids have no shoes. They did not want their home to be a fixer and told this to their Realtor.
17.     Both sellers gave disclosure statements that said there were no problems with the HVAC. The seller of the Gold Lake house was a retired real estate agent and gave a detailed description of having fixed several problems, none of them regarding the HVAC.
18.      Plaintiff and her son inspected the NLR house, finding two minor problems, one where venting of the HVAC went through the roof. The seller had the vent flashed and corrected the other problem.
19.     Plaintiff’s son inspected the Gold Lake house and found nothing of concern except water pooling by the front door and he was disappointed that the boat house belonged to a neighbor.
20.     The Hammetts inspected the house about a month later and found nothing of concern. (The pooling water has been a problem only once in the two years they lived in the house, and it was corrected by cleaning and installing new gutters.)
21.     Before selling real estate, Plaintiff was a combination building inspector for a large county for 10 years and has “flipped” about 20 houses using investor’s money. Several of her represented buyers and investors were repeat clients. Plaintiff also served as an expert in premises and construction defect cases. She felt comfortable that she was buying two good structures.
22.      In the case that any issues did present, Hammett asked for a home warranty policy. Her agent Lora Blair suggested FAHW and the sellers agreed to pay, making Hammett the owner of the policy.
23.      Unfortunately, within a week of moving into the Gold Lake house, the HVAC failed. It was freezing temperatures outside and the condenser had ice all over it.
24.     There is no way Plaintiff could have discovered the malfunction during the inspection period, if it did begin before she purchased the home warranty. She had run the unit at the inspection, and it seemed to work well.
25.     The heater did work after the icing problem but would likely deteriorate if it continued to run.
26.     Defendant FAHW does not give a copy of their adhesion contract to the customer until after escrow closes and they are paid. The buyer never signs the contract. Mail was not being delivered to the NLR house properly, and Plaintiff never received that contract. The Conway house contract arrived a few days after escrow closed.
27.     On the freezing cold morning of Sunday, April 8, 2018, there was ice on the condenser of the HVAC at the Conway house. Plaintiff believed this to indicate a lack of freon in the system and that the system might incur irreparable damage if she continued to run it. She called Defendant FAHW’s customer care number.
28.     They told Plaintiff that her inoperable heater would be treated as an emergency and they assigned the job of diagnosing and repairing it to Defendant Smartcool.
29.     A neighbor dropped by the Plaintiff’s house and said her daughter dispatched companies for home warranty claims. The neighbor said her daughter saw plaintiff’s street name on a claim and called her mother to see if she knew Hammett. The neighbor forwarded advice from her daughter to make a check-up call to encourage FAHW’s contractor to show up, because they often would not.
30.     Later Plaintiff learned that the Neighbor’s daughter worked for a third-party contractor to Defendant FAHW. The neighbor’s daughter no longer works for that company but has not been able to talk directly to Plaintiff, because she was being treated for cancer.
31.     When Hammett called them, Smartcool’s answering service confirmed that the HVAC company would be to the plaintiff’s home on Sunday, April 8, to fix the unit. The plaintiff stayed home in freezing temperatures all day. Defendant Smartcool’s technician did not show up. They did not call.
32.     On Monday, April 9th, the plaintiff called First American Home Warranty. She was told that Defendant Smartcool did not make calls on week-ends – ever!
33.      Hammett asked for a different contractor. Nicholson Heating and Air was assigned. They could not get to the plaintiff’s home until Tuesday, April 10.
34.     Hammett read the contract for the first time on April 9^th. There were several clauses that troubled her, including severe limitations to bringing any kind of suit against the provider and limiting damages.
35.     Hammett also looked at online reviews of Defendant FAHW and found that the vast majority were complaints of receiving “the runaround” and often not having problems fixed.
36.    Hammett, whose name was Laura Lynn before her marriage, wrote an email on the 9th and sent it to the proper email to cancel policies. The email sent from Plaintiff’s cell phone said:   

“To First American,

“I am requesting a refund on policy number 1055507801. My phone number is (760)966-6000. Address 3900 Glenmere Rd,  North Little Rock,  AT(sic), 72116.

“The reason I am cancelling is that I have lost confidence in your company because of the poor response on a claim on another house I own. That policy is 10558900301 on 16 Gold Lake Club Road, Conway, AT(sic), 72032. Both First American and the original contractor assigned lied to me and led me to believe restoring heat to my home was an emergency priority. In actuality, the company assigned never works on weekends and they did not make me first in the morning on Monday, as promised when I called them late Sunday evening to see where they were.

“I will wait to cancel the Gold Lake Club property if my claim is denied for some reason.

“It would show good faith on your company’s part to waive the proration on Glenmere which went into effect 37 days ago. Because I did not make any claim in that period, I could not know that First American would leave me without heat for over 14 hours and be so deceptive that I did not even buy a space heater to get me through the frigid night.

“Thank you,

“Laura Lynn”

•     The policy with no claims was cancelled and a refund made less a “processing fee”.
•      First American acted as if they were going to honor the HVAC claim and did not confirm or deny cancellation of the Gold Lake Club policy explicitly.
•     It appears it was Defendant FAHW’s intention to fix the Plaintiff’s HVAC at that time, but only if it could be repaired, not replaced. If the unit needed replacement, as it did because parts are no longer available for repair, Defendant FAHW had no intention of replacing. They did not tell Plaintiff this, but by their actions and reports that this was habitual for them, Plaintiff eventually came to believe it to be true.
•    For instance, in Diaz v. First American Home Buyers Protection Corporation (previous name of FAHW), U.S. District Court, S.D. Cal case no. 09-CV-00775[1] in their Third Motion to Dismiss at 8, FAHW objects to a class action on the basis that it would necessitate “tens or hundreds of thousands, of mini trials.” They are aware of that many complaints.
•    On June 10, 2018 Plaintiff wrote a second email to the cancellation department as follows:

 “To First American,

“After receiving the following email from me, First American did cancel policy 1055507801 and issued a full refund. Thank you for that.

“Unfortunately, fraudulent and conniving First American employees decided to not ever replace or repair my unit, but did not inform me of the denial of the claim. Instead they added fraudulent statements to the contractor’s portal log and were adamant that the problem was fixed about April 10 and subsequent failure was a new claim. I have volumes of documentary and testimonial evidence as to this situation.

“Please consider the contract rescinded as of the time that First American should have told me they were denying my claim for repair or replace of the HVAC. I clearly stated that was my intent in the sentence ‘I will wait to cancel the Gold Lake Club property if my claim is denied for some reason.’ All actions of First American subsequent to when I should have been informed of the denial are actions taken outside the contract and section 6 of the limits of liability does not apply.

“Please set the issue of whether First American was required to repair or replace my HVAC for binding arbitration as per the resolution of disputes clause in the contract.

“Please have counsel contact me to discuss resolution of issues that occurred after my intended rescission of the contract, including but not limited to torts of fraud and misrepresentation, intentional infliction of emotional distress, loss of ability to conduct my usually lucrative business,  health and welfare issues caused when Ms. Martinez of First American tricked me into staying home with the air conditioning off for several extremely hot days, and for causing me and other inhabitants of my home to live in substandard conditions instead of denying my claim timely and allowing me to get it fixed and then be reimbursed through binding arbitration.

“Thank you,

“Laura Lynn”[2]

•     Plaintiff errantly referred to “section 6” of the contract, when she meant “section 4”. The content of section 4 is as enumerated in the list of issues.
•     The effect of the rescission was two-fold.
•     Pre-rescission, by fraudulent concealment of their common practice of denying claims in bad faith and failure to provide the adhesion contract prior to purchase FAHW induced the owner of the policy to obtain coverage from them rather than a reputable company.
•      This leaves liability for fixing problems that come up before the rescission with FAHW.
•      After the rescission, any contract formed between the parties, whether written, verbal or implied becomes the effective agreement.
•      Here, Hammett offered to let FAHW keep the money paid for her policy if they promised they would fix the HVAC and any other issues without the objectionable limitations inserted in the adhesion contract.
•      FAHW through their employees and contractors agreed explicitly and implicitly.
•      On April 10, 2018 Defendant Nicholson sent technicians to Plaintiff’s home. They recharged the freon and said the heat strips melted and would need to be replaced.
•     On April 23 at 8 a.m., a Nicholson employee called the plaintiff and said the part was on order, but “a challenge to find.” Further, the Nicholson employee told the plaintiff they would call her with an ETA when they knew more.
•     On April 24, Jason from Defendant Nicholson called the plaintiff and left a voice mail that the parts were ordered from the manufacturer, York, and he would call when they came in.
•     About May 4, a Defendant Nicholson employee called the plaintiff and set an appointment to install the parts on Monday, May 7.
•     On May 7, a woman from Nicholson called the plaintiff and said the wrong parts were sent and they would reschedule when the right parts came in. The plaintiff expressed concern because the HVAC made lots of noise, even though it was not on. The female representative at Nicholson said she would send a technician to listen to it that day.
•     A technician from Defendant Nicholson stopped by, listened to the unit and ensured the plaintiff that it was still safe to run it.
•     About May 25, the plaintiff called Defendant FAHW. It was extremely hot and humid but the air conditioner kept “freezing”. It would not work.
•    Defendant FAHW employees supposedly looked into the situation. They concocted this story: They said the unit was fixed on April 10 and the job was “completed”. They said Nicholson stopped by on May 7 to listen to the noise.
•     The written communication log was later altered to delete the event of dispatch on May 7.
•     On May 25, Defendant Nicholson logged the problem as being a second complaint and a “pre-existing condition”.
•      A Nicholson employee told the plaintiff that Defendant FAHW convinced Nicholson to make the fraudulent entry on the project log.
•     Hammett allowed Defendant FAHW to send a contractor to her home on two more days. FAHW instructed Hammett to keep the HVAC off until the technician arrived.
•     Each day, the plaintiff stayed at home, with the air conditioner off, even though it could cool the house to 81 degrees when on and waited.
•     Both days the contractor, Defendant Smartcool cancelled after plaintiff called to see where they were.
•     Finally, exhausted, tired of being lied to, worried about the health issues involved in staying in a hot, humid house, Plaintiff reached out to Home Depot. Plaintiff paid for the replacement of her unit with her own savings and is now forced to litigate to be reimbursed properly by First American.
•     During the period the house was 81 degrees or hotter, Plaintiff took proper precautions. She ran the fans in the house. She drank plenty of water. She cut back on physical activity, especially her daily yoga practice and daily hour-long walk.
•     Prior to this period, Plaintiff was an advanced student of yoga. She could balance on her hands with her legs in the air out to the side cross legged; she could do plow position with ease (plow is a forward fold but done in a supine position with legs folded at the hips back over the torso); she could sit in full lotus and forward fold in full lotus; she could do a Bird of Paradise standing balance with her arms and legs bound through each other. She also wore a loose size 10 jeans and climbed the Manitou, Colorado mile high staircase just a year earlier.
•     During the time Hammett lived without proper heat and air conditioning, she suffered physically quite a bit.
•     Hammett could not do yoga in the hot, humid house.
•     Normally, walking would be uncomfortable in the heat, but Hammett knew she would be able to get her core temperature down when she was relaxing in the house afterwards. Not so while she had no air conditioning.
•     Hammett had just moved into the house and wanted to scrub down all the surfaces just to make sure there were no viruses lingering. She planned to pull up the old carpet in the bedroom downstairs and paint the concrete, but it was too hot. So, she lived with the residual from past inhabitants.
•    The upstairs is Plaintiff’s office and yoga room. The Hammetts call it “Laura’s She-shed”. Plaintiff could not use the upstairs at all for a couple weeks because it was stifling hot.
•    Hammett was a pattern day trader in the equities market. This takes passionate concentration, which is difficult while one is suffering from heat-exhaustion.
•     Weight started creeping on to Hammett’s 50 something year old body.
•     The Hammetts are usually affectionate, cuddling all the time they are together. But they could not even hold hands during the heat exhausting time. This made Hammett sad.
•      The evening Plaintiff finally replaced her air-conditioning, she and her then fiancé made love. Toward the end, he pushed her legs back into plow, as normal for them, and Plaintiff suffered excruciating pain through her lumbar region.
•     Hammett’s muscles had tightened up during the period of forced inactivity. But for this forced inactivity and prolonged exposure to heat indexes over 100 degrees, Hammett would not be injured doing her customary activity.
•    In the case of Lee v. Louisiana Bd. of Trustees for State Colleges, 2016 WL 9460653, District Court of Louisiana, Nineteenth Judicial District, Parish of East Baton Rouge, a jury awarded $2,529,229 to a man who was forced to run 4 miles in the same type heat conditions FAHW subjected the Hammetts to live in for several weeks.
•      Hammett could probably have gotten away with a lie if she said the injury occurred while cleaning the house, but Hammett tries to be completely honest. Hammett’s delay in filing this complaint is partially due to the embarrassment of publication of such a private fact.
•     Mike Hammett suffered equally with Laura, working at a construction job, then coming home to unbearable heat. Plaintiff was anguished to think Mike Hammett was suffering physically to be able to spend time with her.
•      Plaintiff visited a licensed massage therapist (LMT) about six times. It seemed to help give Plaintiff some comfort and healing. But the LMT moved her office location, so Plaintiff tried several others.
•      Finally, Plaintiff found a chiropractor in Little Rock who advertised that she specialized in sport injuries. Plaintiff went to her, Elite Chiropractic, for about five adjustments. It was helpful, but quite a distance from Plaintiff’s home.
•      Plaintiff has now found a chiropractor in Conway, Owen’s Chiropractic. Dr. Owens and the three LMTs who work in her office are all healing, caring, intelligent people. Twice per week visits alternating massage with chiropractic adjustment and other modalities seems to be relieving some of the pain in Plaintiff’s back and left hip.
•     She is still unable to fix properties, which entails bending, lifting and stretching.
•     Plaintiff now wears a size 17. She can walk and fish, but she cannot finish a beginner yoga practice.
•     Plaintiff is unable to perform household chores such as squatting down to sweep dirt into a dustpan. Plaintiff is just now able to lift her computer off the floor without excruciating pain. Plaintiff must sit down to put her pants on. She could surf and she could stand in a yoga tree position with her leg extended toward the sky at 45 degrees, hand hanging on to her foot before the injury accident caused by the Defendants. Putting her pants on standing up was easy.
•     During the time without air-conditioning, Plaintiff was unable to work on restoring a house she bought at the courthouse steps for cash in Saline County in February 2018. (Called the “Avilla Heights house”) She was occupied waiting for the HVAC guys to come to her Gold Lake house instead. Then she was injured perhaps permanently.
•      Because the Avilla Heights house was bought in foreclosure and an inspection could not be made, Plaintiff did not buy a home warranty on that house. She intended to do most of the work to restore the house herself, literally.
•      Instead, to mitigate damages, she partnered with another couple to do some of the work, but the work of fixing a house was too complex and demanding for them. Plaintiff shelved the project until her injuries healed.
•  Mike Hammett was retiring from construction to become a professional tournament bass fisherman. Because tournaments were cancelled due to the coronavirus, he returned to construction. Laura Hammett agreed to a joint venture on the Avilla Heights house with him. Because Arkansas is a common law marriage state, Laura Hammett is losing half the potential profit on the project technically.
•     Plaintiff’s income is not uniform. She does not work on salary. Most of her income is from investments, mostly real estate, and is not realized on a bi-weekly basis, like a normal person. But Plaintiff earned over $1.1 million in 2017 for the sale of a shopping center owned by an LLC in which Hammett is a shareholder. Her income for child support purposes was determined by the Court to be about $36,000 per month in 2009. In 2018, Plaintiff earned almost nothing but her $550 per month pension from her building inspection job, which was generated 20 years ago.
•     Attorney for Defendant FAHW called Plaintiff’s income “speculative”. But Plaintiff has a 100% success rate of earning a profit on real estate transactions over the last 30 years.
•     Plaintiff earned roughly 20% on her investment in the stock market in 2017. She traded only blue-chip companies with upslope rise in price per share over the past five years. Still, understanding the inherent risk, Plaintiff sold all her stocks and put the money in real estate in January 2018.
•     In May 2018 Plaintiff put about $300,000 into a brokerage account. The broker offered her unlimited free trades for two years. She intended to put the money into real estate again when she settled into the new home. That would include having a HVAC that worked.
• Even though Hammett invested in only huge companies with excellent stock price history, that was much more speculative than real estate development.
• She was also selling the NLR house because she offered to transfer title to her son and have him pay her for it in two years and her son did not want to buy such an expensive house. The NLR house sold for $5,000 plus commissions more than Hammett paid a couple months earlier.
• When the NLR house sold, Hammett could not take on any more real estate projects and put the full $250,000 from that into stocks.
•  Hammett leveraged with margin buying power. This gave her more upside potential but created more risk if something crazy happened and blue-chip stocks like American Airlines, Carnival Cruise Lines and Boeing plummeted.
•    The market dropped subsequently, and Plaintiff did not want to take money out until it came back up. (The whole concept is “buy low, sell high.”)
•     On May 25, 2019, Hammett wrote a draft complaint for this case. She wrote: “Plaintiff may be forced to sell investments for a loss or lower profit than she was patiently waiting for if Defendant FAHW does not reimburse her the cost of the HVAC and loss of income soon.”
•     A copy of the complaint was sent to FAHW. Hammett shared copies of tapes that are conclusive evidence of FAHW’s bad faith and malice. Still FAHW would not take responsibility for their actions.
•     Unfortunately, the market crash in February and March 2020 caused the forced sale of Hammett’s stock at a loss of $500,000. If Hammett had just a little more money, about $10,000, she could have held on and her portfolio already would have come back dramatically.
•     Hammett believes the defendants should lend her the money to buy back the portfolio she last sold, share for share, with a no interest, no payment loan that will be reimbursed to the defendants as the value of the shares reaches the pre-crash value.
•     In the time between purchasing the policy from Defendant FAHW, instead of from a reputable company, and discovering that Defendant FAHW had no intention of replacing the HVAC, Plaintiff’s dishwasher broke down. The repair or replacement would have been covered by a reputable home warranty policy company if Plaintiff were not fraudulently induced to buy from Defendant First American Home Warranty.

On the First Cause of Action for Fraudulent Inducement to Contract

(Against Defendant FAHW)

1.     Plaintiff incorporates by reference the paragraphs above as though fully set forth herein.
2.     Defendant FAHW through fraudulent marketing and advertising promised that if Plaintiff purchased her home warranty policy from them, as opposed to any other home warranty company, they would repair or replace a covered HVAC timely. This was a false representation.
3.     Defendant FAHW knew the representations were false or knew that they did not have sufficient knowledge to make the representation. Plaintiff will show at trial that it is common practice for FAHW to refuse to provide the services they advertise.
4.     FAHW does not make a home inspection before selling their policy. They do not require buyers to provide an inspection report and in this case, they did not accept the inspection made by buyer or the seller’s disclosure statement when there was a covered malfunction claimed.
5.     FAHW does not give the buyer a copy of the adhesion contract prior to close of escrow when the contracted service is purchased.
6.     FAHW intended that the plaintiff would rely on the representation made in their marketing and advertising.
7.     Plaintiff, relying justifiably on Defendant FAHW’s representations, purchased her home warranty policy from Defendant FAHW, refraining from purchasing from another company.
8.     Because of Plaintiff’s reliance on defendant’s promise, Plaintiff did not buy from a different company and get replacement or repair of her covered unit from a reputable home warranty company.
9.     Defendant FAHW should be required to pay the full cost of replacing the HVAC unit and dishwasher.

On the Second Cause of Action for Promissory Estoppel and Fraud

(Against All Defendants)

1.  Plaintiff incorporates by reference the paragraphs above as though fully set forth herein.
2. Defendant FAHW promised to repair or replace the Plaintiff’s HVAC.
3. FAHW knew Hammett did not agree with the adhesion contract, particularly at page 12, Limits of Liability section 4 because Hammett told them verbally and in writing.
4. FAHW knew Hammett wanted to rescind the contract if they were not going to fix or replace the HVAC for any reason.
5.  FAHW continued to promise to have contractors come out to the property, then break those promises.
6. Defendant FAHW should have reasonably expected the plaintiff to refrain from repairing or replacing her HVAC on her own in reliance on the promise.
7. Defendant Smartcool promised to come to the property to inspect and fix the HVAC on April 8, 2018 and then twice more. They did not perform.
8. Defendant Nicholson negligently told Hammett they were obtaining parts to fix the unit when parts were not available.
9. Defendants Nicholson and FAHW negligently did not contact Hammett when they found the parts were not available.
10. All defendants should have reasonably expected Plaintiff to wait for them to fix the HVAC.
11. On three days when there was extreme heat FAHW told Hammett to stay home with the air-conditioner off to wait for service providers who did not show up.
12. Defendants should have reasonably expected Hammett to stay home on those days without air-conditioning.
13. Instead of admitting to their negligence, the defendants FAHW and Nicholson altered business documents and made false claims that the HVAC was already fixed and there was a second claim. The defendants conspired to claim the damage was pre-existing.
14. The defendants acted with reckless disregard for the health and safety of the plaintiff.
15. The plaintiff stayed home without heat or air-conditioning for at least four days and many more with impaired air-conditioning, causing discomfort, heat exhaustion, a resulting injury that may be permanent, diminished performance at equity investing and total disability to restore buildings.
16. During the almost two months of impaired HVAC in her home Hammett suffered inability to do her daily yoga practice, leading to a loss of mobility and range of motion, and ultimately to an acute injury to her lumbar region when she tried to partake in customary activity; inability to concentrate properly for her intense work day-trading; a period of loss of use of her upstairs which was so oppressively hot no one could stand in there more than a minute; a period of loss of the affection of her fiancé whom she married in April 2019.
17. The loss of affection is not a loss of conjugal relations, which would require that the Hammetts were already married when the injury occurred. It is not her partner’s body that is impaired. It is her own.
18. Laura Hammett likes physical affection as much as doing yoga, hiking and other athletics. All these pass-times were taken from Hammett by the defendants’ negligence, fraud and broken promises.
19. Injustice can be avoided only by enforcement of the promise, holding Defendants liable for collateral damage caused while they refused to fulfill their promise.

Third Cause of Action for Outrage

(Against FAHW)

1. Plaintiff incorporates by reference the paragraphs above as though fully set forth herein.
2. FAHW advertises that they give the customer “peace of mind”. The home warranty company should realize that the stressful situation they put Hammett in would cause the opposite of peace of mind- severe emotional distress.
3. FAHW should and did realize leaving someone without heat for more than 24 hours may cause them to fall ill and would cause deep self-concern that they would fall ill or even freeze to death.
4. FAHW should have known that leaving a person without air-conditioning for weeks at a time while the heat index was over 100 degrees might cause heat exhaustion and maybe even death.
5. Plaintiff had to worry about herself and Mike Hammett, the love of her life.
6. The defendant’s conduct was extreme, outrageous, and utterly intolerable in a civilized community. FAHW employees conspired with each other and with Nicholson to alter business records and denied coverage based on fabricated “preexisting conditions”, but only after leaving plaintiff without heat and air for several weeks.
7. This was not an isolated incident. It is common practice for FAHW.
8. Plaintiff was extremely upset by FAHW’s actions. It is two years later, plaintiff’s back still aches and so she is constantly reminded of the unethical, maybe illegal, reckless actions of FAHW.
9. Whenever the weather starts getting hot, plaintiff is reminded of those physically miserable weeks in her new home when she could barely even hold Mike’s hand for the profuse sweating.
10. When the Hammetts have conjugal relations, they are appropriately careful of Laura’s back. But Laura still has a moment of panic when Mike seems anything like he will push her legs back.
11. Hammett has a sister who drinks too much and makes bizarre phone calls and emails to Hammett and others. Hammett is suing her sister to make her stop this defamation, IIED and for a business dispute.
12. Hammett told FAHW’s attorney about the lawsuit. First, because it gave Hammett more reason to settle and she offered to take far less than the case is worth. One lawsuit is full time work for the untrained pro se litigant. The other reason is that coincidentally, one opposing counsel on the defamation suit was Diaz’s attorney on the Diaz v. FAHW case. Hammett found this interesting.
13. There is evidence that FAHW’s attorney told Hammett’s sister about the trouble the Hammetts had during intercourse. If a jury agrees that it was FAHW’s agent who disclosed this private information to unconcerned third parties, before Hammett decided to file the complaint, that invasion of privacy is even more outrageous conduct.
14. No reasonable person should be expected to endure this aggravation and distress, especially after paying for “peace of mind”.
15. The Department of Insurance said FAHW is not subject to insurance regulations in Arkansas or this would be called an action for insurance bad faith.

Wherefore, Plaintiff prays for Remedies as herein set forth.

On the First Cause of Action for Fraud in the Inducement Against First American Home Warranty Corporation:

1. For general damages in the amount of $8,668.89, the cost of replacing the HVAC, exclusive of interest;
2. For the cost of a new dishwasher;
3. For costs of litigation;
4. And for such other relief as the Court deems appropriate.

On the Second Cause of Action for Promissory Estoppel Against All Defendants Jointly and Severally

1. Compensatory damages for loss of income in an amount to be determined by jury;
2. Compensatory damages or a loan as described in paragraph 114 above.
3. Compensatory damages for medical expenses in an amount to be determined at trial;
4. Compensatory damages for physical pain and suffering to be determined at trial;
5. Compensatory damages for emotional distress to be determined at trial;
6. For costs;
7. And for such other relief as the Court deems appropriate.

On the Third Cause of Action for Outrage Against FAHW

1. Punitive damages enough to deter the Fortune 500 subsidiary from acting the same way toward other citizens of Arkansas and to let them know malice, the disregard for truth, will not be tolerated.

Trial by Jury is Demanded.

Dated: May 28, 2020                                 /s Laura Hammett

                                                                 Laura Hammett

                                                                 Bohemian_books@yahoo.com

Verification

I, Plaintiff Laura Hammett, state that the contents of the pleading above are true to my knowledge, except as to those matters stated on information and belief, and as to those matters, I believe them to be true.

Dated May 28, 2020                                /s Laura Hammett

[1] Case No. 09-CV-00775 was consolidated with 13-CV-01585, Carrera v. First American Buyer’s Protection Corporation and settled 3/30/2018 after 9 years of litigation. Class certification was denied at the District Court and the denial was affirmed by the Ninth Circuit Court of Appeals. Because it is so difficult to get class certification and their contract limits damages, FAHW has no incentive to change their malicious and dangerous behavior. The unique situation in this case, that the contract was rescinded and a second agreement formed, gives Hammett the unique opportunity to hold FAHW accountable.

[2] The NLR house contract was cancelled. The Gold Lake Club house contract was rescinded, as if it never existed, a different agreement was made and therefore the arbitration clause is not in effect.