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Workmanship Liability


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Jerry's Forum Posts: 29
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By Jerry in Lee's Summit, MO on 3/21/2010


Within a few months of our stucco application, an approx. four-sq-ft area of acrylic topcoat began peeling off. I contacted the contractor and local Sto rep. (who manufactures the topcoat). The contractor accepted the responsibility, and believed it was caused by excessive antifreeze in the base stucco mix in that area. The approach was to neutralize the base surface with a mild vinegar solution and reapply the topcoat. It took me three months (and a very direct threat of legal action) to get the contractor to complete the repairs, but things seemed to be fixed OK.

We have been in our house for almost two years now, and a winter of harsh freeze-thaw cycles has exposed a different area of topcoat peeling similar to the first. I have left four voicemails with the contractor and have not received a response. There was no warranty agreed to at the time of the stucco work, but in my mind this is the same issue related to original workmanship. Has anyone dealt with this type of situation? I am prepared to follow this through until it gets resolved. Do I have any legal ground to stand on here?

Thanks, Jerry


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By David in Greenville, SC on 3/22/2010


Hey Jerry,

As always, the place to start with any legal matter is to check your local and state laws on matters such as this. However, unless your area has unusually tough statutes, then you are probably out of luck pursuing this matter through the courts. Why? Well, you stated you have no warranty of any type which might legally obligate the contractor to come back and fix problems for a specified period of time. The first incident happened within a short period of time after installation, therefore it was likely the contractor's error that caused the problem. He recognized this and took responsibility even though it took threats to move him to action! However, after two years and a harsh winter it would be difficult to directly link the second incidence of peeling to the first.

Even if you could prove it was the same problem causing the new peeling you would likely have to show willful negligence or fraud to win any sort of judgment against him. Very difficult after two years. Even then you might still get nothing. I have a friend who just went to court over a dispute with a contractor who horribly botched a concrete job. Not a little bit but completely wasted all the concrete because he didn't get the grading right to start with. He tried to cover it up by pouring and shaping 12 yards of extra concrete that he didn't tell my friend about but billed him for anyway. This was proven irrefutably. Every witness (trade professionals) brought in testified in favor of my friend. The contractor offered no rebuttal except to say he thought he was doing what was agreed upon. The judge awarded the contractor a $1,600 judgment! This guy does an unsalvageable job and commits fraud and wins anyway!

Now, none of this is to say there is nothing that can be done. Certainly consult a lawyer. It may only take the threat of legal action to get this guy motivated again. Don't stop calling. Be professional but firm. These guys are not your friends at this point, but aggression and anger is usually met with more of the same. If they don't respond, give them one warning of legal action and a time frame to respond. If they don't reply have your lawyer send them a letter. No sense playing around anymore if they won't even talk to you. Contact the supplier and tell them the situation. They may act as an intermediary if they sincerely want to have their products installed by only the best and most honest contractors. Plus, they may send a rep out to inspect the problem and determine what it actually might be.

Another thing to consider, though, is to make as sure as possible you are dealing with the same issue. As I mentioned above, the supplier's rep may be of help here, but bring in another stucco contractor to see what they think the problem might be. From your description it sounds like the same problem, but you want to make as sure as possible before taking legal action against someone. Maybe it is another issue and the fix that worked last time won't work this time. If the experts think the problem is systemic, then it might be worth pursuing because the cost of redoing the whole house would easily outweigh the legal costs. If they think the problem is local and either the same as last time or undetermined then it will probably take less time and money just to have someone else do the repair job.

It stinks that this has happened to you and in an ideal world this contractor would at the very least come back to take a look at the issue. But they know that it only takes a little bit of time or one vague or omitted line in a contract to give them the advantage in all but the most egregious situations. Integrity still exists, but it sure seems a lot harder to find these days! Good luck.


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By Jerry in Lee's Summit, MO on 4/5/2010


David,

Thanks again for the insight. Believe it or not, the contractor actually returned my call after the fourth message. He said he was out of town for three weeks chasing some work to get through the downturn. I am fairly sure he was still getting my messages, since they were left on his cell phone, but it doesn't matter much at this point. I have talked with him a couple of times since, and he is planning to come out once things dry out here. It is raining again today, so it may be a week or two. I am positive that without my persistence, he would not have bothered getting back to me. I will post an update once complete or if anything changes.

Jerry


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