At least once a week, I will get a call from a potential new client who has an issue with a contractor and the work that was performed on their house and they are unhappy with the work or the contractor has stopped working or other like problems. In theory, this is a breach of contract case. This case could be costly to pursue, and you may “win” but you may not be able to collect.
The way to avoid issues is by picking the right contractor. It depends what amount of work you are doing but you need to generally find someone who you know does good work. Use only someone who has successfully done work for a friend or relative. The same kind of work you are looking to have done. Interview the individual, make sure that you are on the same page for costs and expenses. Many people cut corners, and pick the guy who will do work for “cash” at a cheaper price. Hire someone who is pulling permits, and having the work inspected, if applicable. Hire someone who is bonded and insured and/or registered with the city. Double check with the city that he is “good,” and the inspectors know who he is and the quality work he does. Hire someone who prepares a written contact, with a three day right of cancellation, that is clear to the scope of work, who is paying what and when it is being paid. Get references and check those references. Get multiple bids on price. Again, just make sure you and the contractor are on the right page. You may be doing a lot of work on the front end and you may be paying more, but on the back end there will be less of a head ache, with higher quality and less of a need to call an attorney. Avoiding a problem is simple, DO YOUR RESEARCH !!
Problems arise, what’s next ? Next is a business decision. How much is this going to cost me to fix this now problem. The first question is: What are the damages ? Damages mean financial harm. What is it going to cost me to fix the problem. Say you had hardwood installed, what is the problem, and what will it cost to make it right. You would need to get an estimate to fix or replace the floor , or whatever. Now other costs. You will need an expert (who will charge you) to say that the work was done improperly and not in a workmanlike manner. In this world there is a reasonable standard of “workmanlike manner”, and the work may or may not meet this standard. This allows for some defects, work does not need to be perfect. This standard is determined by the Judge or Jury. Know that they will also have an expert to say it is in industry compliance. You will be paying attorney fees to try and negotiate, to file a lawsuit, to complete discovery and depositions, maybe go to mediation, maybe go to trial. At $250 to $500 an hour, that is costly. Know that attorney fees are not collectable in a breach of contract case and most attorneys will not take these types of cases on a contingency (they get paid if you get paid). There is far too much risk in not being able to collect.
You need to win the case first. IF you win you need to be able to collect. Collection is by far the most important factor in these cases. Can you collect ? If someone is working as an individual you can sue him individually. You do not know what he owns, and certainly he has the option to go into bankruptcy. If he owns a corporation, the corporation may own nothing, and the contractor owns all of the tools, and is merely an employee. If you get a judgment against a corporation, who owns nothing, then what ? You collect nothing.
There are some statutes that give hope to the home owner such as the Consumer Sales Practice Act and the Home Solicitation Act. They allow you to cancel the contract and demand all of your money returned. End of the day you still need to be able to prove your case, and collect any judgement. This will likely be costly.
End of the day, do your research in advance and your chances of having a problem are far less. These cases are often unfortunate in that the better and cheaper business decision is to hire someone else to fix the problem and move on, rather than pursuing legal action.
If you still want to pursue contractors, it is likely best to pursue them on your own. Kirner and Boldt offers unbundled services where you can pay for representation for certain portions of your case, and not full representation. This could include, but not limited to, drafting a lawsuit, advising as to how the process goes, preparation of written discovery, deposition preparation, evidence preparation, testimony preparation, etc. Please contact us if you want to discuss these options.
