Many contractors are under the assumption that if a customer finds fault with their work, the contractor has at very least the right to be told about it and come back and fix it, before the customer can bring in someone else at the contractor’s expense. Au contraire, mes amis.
The law is, unfortunately, all over the place on this issue, but in almost all cases, a written agreement on the point will be enforced.
In I.C.C. Protective Coatings Inc. v. A. E. Staley Mfg. Co., 695 N.E.2d 1030 (Ind.App.1998), Staley hired icc to line its chemical reactors with a protective coating but later decided that icc’s work was the worst it had ever seen. Despite icc’s offer to fix the work, Staley brought in another contractor and went after icc for the $51,000 extra repair cost.
The court found that, while icc’s bid stated that the only remedy for nonconforming work would be a repair by icc, Staley’s purchase order was different and, by accepting the purchase order without objection, icc was stuck with Staley’s terms. Although acknowledging that Indiana law might have gone the other way had there been no written agreement, the court found that the purchase order controlled. Staley was also entitled to recover its lost profits and ended up with a judgment for $171,759. Watch what you sign.
Lest you think that Indiana is the only state to feel this way, look westward to Missouri. In Miller v. Bakken et al., 978 S.W.2d 518 (Mo.App.W.D. 1998), homeowners (the Millers) who became fed up with their contractor finally refused his offer to make further repairs to their leaky basement and brought in another contractor. They sued Bakken, who protested that he had been deprived of his right to fix his own work.
The court found that the contract did not give him that right. “[W]here the contract contains no [right to cure] provision, a plaintiff is not required to allow the defendant an opportunity to repair before bringing suit” (978 S.W.2d at 520). Merely giving a warranty does not give the contractor the right to be the one to fulfill the warranty.
The lesson to be learned from both of these decisions is the importance of getting your right to repair your own mistakes in writing, and in the final document that will control your arrangement. Putting it in a quote, bid or proposal won’t protect you if that document is later superceded by a written contract. This goes for construction mistakes as well as warranty repairs.
Since customers with failed work tend to be less friendly to the installing contractor, you are far less likely to have the opportunity to repair your own work (and control the cost of the repairs) if you don’t have it in writing.
Susan McGreevy is a partner at Husch & Eppenberger, Kansas City, Mo., tel. 816/421-4800, e-mail to [email protected]