I had a custom cabinetry business here (Michigan) for almost 3 years until this January when I gave up and went back to my old job.
I did a job for a Realestate office last November commissioned by an interior designer. It involved applying pre-finished Cherry panels to the lobby walls, trim the entire lobby and conference room in Cherry and build/install a reception island.
The ID called me today and said some of the Cherry veneer is “bubbling”.
What’s my Liability/Responsibility?
Does it matter that they were all jerks to me during the job?
“I never met a man who didn’t owe somebody something.”
Replies
What is the manufacturer's warranty on the product? What does your contract say for your guarantee?
The mfr warranty is for the product only, not the installation that I did.The only guarantee in my contract is that I'd finish the job by a certain date for a certain $$. No warranty was written of implied.
"I never met a man who didn't owe somebody something."
Your resposibility is to go check it out - and if there is any installation issues - to fix them.
Otherwise you are just a jack off who should never been in the business, taking peoples money, doing low bid work, and walking away from it and trying to find a way to find a way out.
If it is a material issue, then you should let them know that you no longer do this as a living and they need to find a qualified concern to handle it with the manufacturer.
If you made money on supplying the materials then you are the retailer and should make it right - even if you can't get the manufacturer to step up.
How you felt that you were treated has no bearing on the truth.Remodeling Contractor just on the other side of the Glass City
Thanks, but when did I say it was "low bid" lol?
"I never met a man who didn't owe somebody something."
Actually, unless otherwise stipulated in the contract, there is always an implied warranty. Check out that phrase on Google. Interesting reading.
However that doesn't seem to impact your situation because whatever is causing "bubbling" in a veneer must surely not be a result of your installation. Could it? Got to be something defective in the product, no?
Anyway, let us know what you discover, will ya? I'm curious about client descriptions vs. actual facts.
Actually, it could be the installation. I mean, what if it's the adhesive I used pulling away from the drywall? Couldn't they argue that I didn't install it correct? I used the product the manufacturer of the veneer said to use (PL premium) and applied it how they told me to do it, but that was all verbal as the veneer shipped w/out and type of instructions.
"I never met a man who didn't owe somebody something."
Buttkiski, Might be the manufacturer does have some written guidelines to installation you could get . If it were me I would give them a call and see what they have.
"Poor is not the person who has too little, but the person who craves more."...Seneca
The only guarantee in my contract is that I'd finish the job by a certain date for a certain $$. No warranty was written of implied.
In most states, by law there is an "implied warranty of merchantability" and an "implied warranty of fitness for purpose". Unless your contract specifically disclaims those warranties, with the proper legal wording, and it is legally possible to disclaim them in your state, the customer would have those warranties.
BTW, there is essentially no limit on the warranties, though courts usually limit them to 20 years or less.
When you hear those stories on the news about a guy who got his 20 year lawn mower replaced under warranty, that is usually the warranty he used.
"When you hear those stories on the news about a guy who got his 20 year lawn mower replaced under warranty, that is usually the warranty he used."
What happens when the lawnmower manufacturer is no longer in business?
"I never met a man who didn't owe somebody something."
What happens when the lawnmower manufacturer is no longer in business?
It depends :-) For large corporations, the bankruptcy courts often either set aside money for settlements for a period of time, require a payment to existing owners to buy out their warranties, or something like that.
Depending on how (and how well) the corporation was set up, the officers may or may not be individually liable.
If the owner can find someone associated with the former company to sue, they likely will. Like any court proceeding, it's a crap shoot.
My suggestions are:
1. Talk to an attorney about the specifics in your case and your locality - you will likely end up doing this eventually, better sooner than later.
2. Do what you can to keep the ID and the customer happy, within reason, but be VERY careful what you say. I would be very non-commital, I would not put anything in writing, etc.
But I really think you should talk to an attorney.
In Michigan, (I believe) your work is under a minimum 1 year warrantee regardless of whether or not you stated it in your proposal.
If you purchased the paneling, it is your job to get the product warranty honored.
Regardless, you need to make it right – on your dime.
I know it s**ks, but it is not only the honorable thing to do – it’s the law.
Terry
You need to go look at the problem, then make a decision as to what you will do. Could be the agents dog peed on the paneling. Could be a manufacturing defect. Right now you're knee-jerk reacting.
"Put your creed in your deed." Emerson
"When asked if you can do something, tell'em "Why certainly I can", then get busy and find a way to do it." T. Roosevelt
Thanks. I don't mean to "knee-jerk" but I know how these people treated me in November and I also know the ID was pissed in his voice mail. I want to know my rights before going in there.
"I never met a man who didn't owe somebody something."
Go have a look, and remember those magic words, "Let me think about this."Lignum est bonum.
Thanks, I will.
"I never met a man who didn't owe somebody something."
Sounds like between your install and November moisture has entered into the material some how. How close is the lobby and conference room to an outside entrance?
For cherry veneer to bubble that fast it needs help of some form. The first thing is to see where the bubbles are and test with a moisture meter.
Your response should be one of honor even though they are less then friendly.
Besides even if you don't go back to this type of work it's your name that you need to protect.
Nailer
The only thing that evil needs to win is for good men to do nothing!
Thanks nailer.
My concern is that someone somewhere is going to say I used the wrong adhesive/process, even though I did what the veneer supplier said to do. The builder/owner/designer saw it being installed and didn't question the method at all, but I know that those people love to blame installers when stuff like this happens.
It's nearly a 2 hour round trip drive from where I'm working, and my lunch break is only 1 hour so I'm going to call today and see if I can get in there during the weekend and check it out.
"I never met a man who didn't owe somebody something."
Well, hold on a sec' while I put on my lawyerin' hat.
There we go.
Go to the site. Investigate carefully to determine the cause of the problem. May be that there are problems with the building, or even use by the tennant, that is causing this problem as opposed to improper installation or defective materials. If so, you're off the hook. Point out the source of the problem and recommend someone to fix it. (That helps since it may avoid a follow-up contractor pointing the dreaded "Finger of Blame" squarely at you, whether or not you deserve it.)
If the problem is with the materials, offer to help the owner get satisfaction from the maker or yard. However it is likely that the liability there is only for the replacement cost of the materials only, not to do the work to repair/replace, so there is still a problem with that part. See below.
If the problem is installation, you are (at least morally -- see below again) obligated to make it good. Now for the lawyerin' part:
Was your business incorportated? If so, you may be off the hook on a technicality, irrespective of the cause of the problem, since the business is now defunct and, I assume, without assets and, if you did the corporate stuff properly, you are protected from personal liability. (Not the best option from a reputation standpoint, though.) If not, you're responsible personally to make it good if the owner can show you did defective work. Do the right thing -- it's always cheaper than dealing with a lawsuit, even if you win.
Mike Hennessy
Pittsburgh, PA
Thanks Mike.
I understand everything you said, but I'm not understanding how I know/prove it was or wasn't my fault.
I can predict for sure what will happen: I will get there and they will say it's my problem. I can find that perhaps a duct is blowing on that wall, or there is a hot light shining on it, or maybe there's nothing at all.
The adhesive can that I had left over has a label listing what it should and should not be used for. It's so ambiguous, there's no way we can hold them liable.
If I say I did it the way I was told by the designer and supplier, I'm still responsible, right?
If I don't say anything, I'm still responsible, right?
So the way I see it now the more I think of it, I can't possibly NOT be held responsible.
"I never met a man who didn't owe somebody something."
It was pre-finished, right? The issue is with the finish. Who chose the pre-finished paneling, and who purchased it? If it was me, I would let them know that the installation is warranteed, for issues with the finish they have to contact the people who did the finishing.
Unless you chose and purchased the prefinished paneling, then its up to you to contact the supplier regarding the warranty on their product. If the problem is due to lighting or ducting issues, then it becomes an issue with the project design - and the designer needs to deal with it.
"...an open mind is a powerful thing. The ability to listen to others is invaluable."
Jim Blodgett
Huck, it was prefinished but they didn't say the finish was failing. They said a sheet is "bubbling off the wall". This implies a problem with the adhesive...which I applied...as directed (verbally) by the veneer company...as approved (verbally) by the designer.
Thanks!
"I never met a man who didn't owe somebody something."
Did you glue veneer directly to drywall? Is it on some kind of backer panel, or is it just paper-backed veneer glued directly to the rock?
It was 2 ply pre-finished Cherry on a phonelic (sp?) backer applied to primed drywall using PL premium and a v-notch trowel.
We were going to use the peal-n-stick veneer, but the supplier sold us on the phonelic and adhesive method because it would level out the "highs and lows" of the drywall.
"I never met a man who didn't owe somebody something."
How long had the primer on the DW had to dry before the veneer install?JT
Great question. I'd say 3 days max. as this job was super rushed.
"I never met a man who didn't owe somebody something."
Depending on the humidy levels - is that enough time for the primer to fully cure? Maybe that's where the problem is - I'd bet if you could see behind the bubbled part you'll see that the primer has lifted from the surface of the drywall.That doesn't help you in terms of whose fault it is - it probably clouds the issue a bit which puts it in your lap again...JT
Thanks JT.
Yeah, there's a dozen (or more) variables I know of that could cause this and unfortunately they can all be blamed on me because the designer, adhesive mfr and veneer mfr all were less "hands on" than I was.
"I never met a man who didn't owe somebody something."
Hey, you're in my area of the woods. I live in Fowlerville, work in Walled Lake and this panel job is in S/W Ann Arbor (Zeeb & 94).
Maybe you'll hook me up and go fix it for me :)
"I never met a man who didn't owe somebody something."
I know it is a matter of reputation and honouring your work but to me I wouldn't go back. Going back is admitting it is your fault. Which it may or may not be. I use to contract on my own when things were slow and one of the houses I did ten years ago phoned me a month or so back with a problem. Now how do I know what she did in the ten years. Was it my workmanship or did someone else she may have hired over the years alter the structure. A lawyer said don't touch it. Your opening up a can of worms.
Do you think just looking at it admits fault?
"I never met a man who didn't owe somebody something."
20/20 hindsight now, but I would NEVER glue something like wood veneer to drywall in the field. That veneer should have been laid up in a veneer shop on a hot press onto balanced panels and then applied to the wall. My guess it that sooner or later all of that veneer is going to come off. If it is letting go in one area now there will be more later. Once veneer adhesive lets go under the veneer there are few if any good ways to repair it. Some involve cutting a slit in the bubble and trying to inject glue, etc. Futile, IMO.
If you want to take care of it, buy proper veneer panels and go install them with the necessary trim. If you don't want to take care of it, find out from a lawyer what your warranty responsibilities are.
I'm from Ann Arbor and lived there 25 years, but I don't know any attorneys there any more.
Thanks David, but the supplier sold me that veneer with the phonelic backing because it could be applied to the wall as I did. He even said spray contact cement would work, but the adhesive w/trowel method would hide the walls better.
I can see how replacing it with panels as you describe would be ideal, but I'm no longer in that business. Heck, I just sold most of my tools in April!
Do you think I'm responsible even though I did what the supplier told me to do?
Oh man...this could get ugly...
"I never met a man who didn't owe somebody something."
I was ok with all this until you mentioned that the supplier said spray contact cement was ok with panels with a "phenolic backing". That's hard to believe, and brings his other approach into serious question.I'd go look over a weekend. I think you're going to find that the adhesive has detached from the panel.As to what you're morally responsible for, you'll have to decide. I've had a great deal of difficulty getting panels of anything to stick to primed wallboard, and a phenolic backing is very slick. I suspect your supplier gave you bad advice...Let us know you you see, will you?BrooksEdit: Adjusted slightly...
Edited 6/8/2007 12:58 pm ET by Brooks
Thanks Brooks.
I just spoke to the ID on the phone and he is PISSED at me. He made it clear that if he doesn't get it fixed they are sueing him so now it's my problem.
I told him to calm down and I will be able to check it out in the evening next week or maybe next weekend. He said "TODAY!".
So I said..."I will be able to check it out in the evening next week or maybe next weekend" to him again at which point he hung up.
I guess I'll have to get my ex-attorney a heads up before I go out there.
Yuck, what a mess...
I'll certainly keep everyone informed because there may be several lessons here.
"I never met a man who didn't owe somebody something."
1. Send an email to the ID acknowledging his phone calls about the problem, and say that due to other business you cannot make the visit until _____ . Keep it simple, don't mention that he demanded a visit today, just say when you will be there.
2. Did the ID tell you how to install the veneer? Did they say they did not want it glued to a substrate? Now is the time to go back through the files and find all your notes about how they directed your work, plans, sketches, etc."Put your creed in your deed." Emerson
"When asked if you can do something, tell'em "Why certainly I can", then get busy and find a way to do it." T. Roosevelt
1. Send an email to the ID acknowledging his phone calls about the problem, and say that due to other business you cannot make the visit until _____ . Keep it simple, don't mention that he demanded a visit today, just say when you will be there.
Good advice, but follow it up with a letter, preferably certified or at least sent with a "proof of mailing". He will want to be able to verify the communication in a way the courts will accept, if this gets really ugly.
I can do that, thanks.
"I never met a man who didn't owe somebody something."
'kickski: Now's the time for calm sureness. You mentioned a convenient time; he hung up. So he has voted himself "off the island".I'd get in touch with the property and, telling them you've heard there's a problem, ask to schedule a time convenient to you both to "take a look at the situation". No condolences, no defensiveness, just a professional interest in determining the origins of the problem.If people start getting unpleasant, tell them you're a professional, you don't care to be spoken to that way, and leave...KUP! (Keep Us Posted!)
Brooks
I can do all of that, thanks.
My apparent professionalism could mean the difference between a lawsuit and not.
"I never met a man who didn't owe somebody something."
Who did you have the contract with and who paid you?
The designer contracted me.
"I never met a man who didn't owe somebody something."
Then your responsibility is to the ID. Be careful not to say too much to his clients. Were you a corporation?
BK,
The worst part is the worrying about the unknown. Get over there, take a look at it, and I suspect it will be much clearer in your mind what you are dealing with and how to handle it. The first step is always the hardest, and this is a classic example.Woody
If you need a good attourney in SE Mi, let me know. I've got a good guy who works with a lot of contractors and is a licensed builder and realestate developer himself.He'd be able to tell you in short time what your liability may be.Email me at julianATjuliantracy.com if you'd like his number. He works out of Northville, MI.Regards,Julian
I'd definately go back even if only to be the first to suggest that the problem stemmed from something other than your install.At that point, you can point them in the direction of who to hassle next and tell them good luck.Not going back will surely put the blame on you and possibly cause a lawsuit. By being the first to inspect and assure them your install was not the cause they can fight it out with the suppliers.Now if you go back and you truly believe that your install was flawwed, regardless of them being pains, you should take care of it, although because they were pains, you can schedule it for a while from now.Sounds like a mess.JT
What's my Liability/Responsibility?
depends on Michigan law, which may well "imply" warranties as a matter of law.
>>Does it matter that they were all jerks to me during the job?
Nope. Unless they somehow agree.
With my mouth I will give great thanks to the Lord; I will praise Him in the midst of the throng. For He stands at the right hand of the needy, to save them from those who would condemn them to death.
- Psalms 109:30-31
Thanks Bob.
I understand the implied warranty, but I'm wondering how that may work for a business that isn't in business anymore.
I was being facetious about the jerk thing...kinda. I mean, I know legally jerk or not the law is the law. But ethically speaking, jerk should be considered, shouldn't it?
"I never met a man who didn't owe somebody something."
I did a very small drywall job a few months ago. The Homeowner's son was going to do the trim. I got a call that "all the paper was coming loose".
When I taped a corner, I ran the paper long and left a 1/2 loose tab in one corner and left another tab in a corner I couldn't reach into and was going to be covered with a cabinet. There was another, small problem,but as far as the paper coming off, that was the problem.
But, oh, the nightmares that I cooked up the night before I went to look. As it was, I showed up, explained the situation, and when they could see what I meant everything was fine. The fix was easy.
It sounds like this designer is an easily excitable guy. I hope he exaggerated the situation. Maybe its an easy fix.
From what it sounds like, I would dread having to deal with him again, but if he turns abusive, there is no law you have to take it. As long as you don't do or say anything that can get you in trouble, then it may work to your advantage.
So I went to look at the job tonight and everyone was civil; just want it fixed. Naturally, nobody wants to pay for it which is going to be the problem.I had spoke to an attorney earlier in the day (thanks Julian!) and he basically echoed what most of you said: check it out, don't say anything stupid and don't freak out.It appears to be a material problem for three reasons: 1) not every sheet applied to the walls is bubbling, even on the same wall some are bubbling and others aren't 2) the reception counter that I had made by a local c'top shop is also bubbling, even though it was made with particle board and spray contact cement; the exact method this veneer was designed for and 3) the bubbles are long and skinny and in line with the grain of the Cherry (it's flat sawn) which tell me (us) that the veneer is trying to go round like a tree again.Both the designer and the owner agreed with me when I pointed those things out to them that it's a problem with the sheets. It's clearly and expanding/contracting problem and I believe they sold me a product not suited for that job, even though I told them exactly what I was using it for.I'm contacting the supplier tomorrow and we'll see what he has to say.Thanks everyone.
"I never met a man who didn't owe somebody something."
That must be a bit of a relief to you.BTW, were you carrying liability insurance at the time? Incorporated?The two scariest words I ever heard were "future earnings" when referred to about what else you could lose aside from what you own right now. Scary thought. Now I have insurance and am incorporated so the worries are not as many.Good Luck,Julian
Hi Julian, I am relieved, but not out of the woods yet. I am confident I have a good case for it being a materials issue. I will be contacting the supplier that told me to use this stuff and I'll see if they step up and be accountable (I doubt it). They'll probably only offer to replace the materials, so someone will end up eating the labor most likely.I did have liability insurance, but since I didn't actually damage anything it probably wouldn't cover. I never did get incorporated. It was always one of those things on my to do list that I never got around to doing because I was always busy marketing myself or working. This portion of the job wasn't huge in terms of money; it was just 2 walls and 6 sheets of this veneer so it wouldn't cost me everything I own to fix it if it came down to that. It only took one day to install.Thanks again for the attorney info. He's a busy guy, but he gave me about 1/2 hour of free advice on the phone.
"I never met a man who didn't owe somebody something."
>>he gave me about 1/2 hour of free advice on the phone.
Sounds like he can smell a lawsuit coming and knows you'll be back.
Just kidding! Six sheets... sounds like you may get off easy.
Whew, I'm glad I scrolled down!!!!!!
Yeah, it's actually only 4 of the 6 sheets, but I suspect the designer and customer have lost confidence in that material and will be demanding the supplier replace it all with something more appropriate. This will cost more money, and that's where the ugliness will start I suspect, unless the supplier steps up and admits they recommended an inferior product and/or process and is willing to "make it right".
We'll see.
"I never met a man who didn't owe somebody something."
Now is the time to be proactive. When the new product is identified, you should have the name and phone number of a contractor available that you can give to the cklient, explaining that you are no longer in the business and cannot do the new work. Help them get resolution from the manufacturer, but step out of the picture after that."Put your creed in your deed." Emerson
"When asked if you can do something, tell'em "Why certainly I can", then get busy and find a way to do it." T. Roosevelt
Thanks. That's exactly my plan as suggested to me before from here and the attorney.
I just hope the manufacturer doesn't put up a fight.
"I never met a man who didn't owe somebody something."
Alright, Kickski...what happened? (hope you're not in jail for beatin' up a designer/decorator...or making him break a nail while beatin' you up!).Jay
LOL
I wrote an email to the supplier of the veneer with some pictures attached telling them the situation and that I felt I was sold the wrong product for the given application. They forwarded this email to the corporate people, and that's the last I heard about it. It was sent last Thursday.
Once I got involved, the designer pretty much faded into the sunset letting me have all the fun with the owners.
I hope to get them at least a refund for materials from the veneer people. I may then refund them my labor and wash my hands of the whole project, if they let me.
"I never met a man who didn't owe somebody something."
Good for you, at least you're taking the bull by the horns so to speak. I would have to think that any decent person (what are the chances, huh?) would at least appreciate that you are taking the steps to get the issue resolved...especially now that you are "out of the business" currently and having to deal with this in your "off" time.Good luck and thanks for the update.Jay
It seems ( seams) totally fitting, that you may reap what you sow. I am not saying that you had a hand in the debaucle you describe.
I will take this admission of your questrioning, as a self exposed expose' of what is really you.
That is good thing as Martha says..you covet your vanity with redundance....a prizeed trait.
That is how she made a fortune, after leveraging herself and husband for the first loan of 85 million. That took guts. and with those guts ( pardon my innepitude, with punctuation,and such) she is.
I don't doubt that, you can secure a place in society, with studied practice.
It is fine art to sell icecream to eskimos, unless you know why they have a refigerater to begin with. ( he is slow, i spelled it that way)
So far, you have missed my bow, publicly. Maybe more than you realize, Doing so, makes you smattering in comparison.
The fact that you have to ask what to do in this situ, spells out how you think, you want to absolve blame, you are a victim ( of sorts) now tell me again..who has aspirations for the egg hat?
You stated you got whacked by a DWI driver, OK, lost your career,OK sorry squid, I didn't, I fugged myself up....I had a nice , redhead once too, get over it .
Profile here is ( was as of 00.00 20/06/07) nil, I gave up my ssn for ur perusal, you called me BS...ya twit.
I ain't fighting you, just trying to get ya in the book..tell me who yar ,IRL.
uhhh...
"I never met a man who didn't owe somebody something."
Point taken.
oh.."check" when you place yourself in check, I must announce it prior to you untouching the culprit.
View Image
"I never met a man who didn't owe somebody something."
Finally we're on the same page, in a common book?
About time.
Not trying to hurt anyone's feelings here.... but you might consider short, clear posts that are on topic. Makes a lot more usable forum for everyone else.
LOL, and I thought it was just me!
I gotta think spherical makes a good point. how you handle the situation spells out what kind of guy you are.
how do you want that to read?
And I'm handling it the way nearly everyone here suggested. I went and checked it out. I was courteous to the designer and customer. I installed it the way the supplier told me too. I am contacting them to fix it for the customer. Am I doing something wrong or are you congratulating me for doing it properly?
"I never met a man who didn't owe somebody something."
Just a thought, here in oregon you need a lic, If you have no lic or gave it up you could be fined for working without a lic and insurance, Kudos to you for fixing this i am wondering thats all, The people would go against your bond if something was wrong .
License isn't required here for trim or any carpentry that's non-structural.I was insured with a $1M GL policy.I wasn't required to be bonded as I was sub-contracted by the Interior Designer, not contracted by the builder or owners.
"I never met a man who didn't owe somebody something."
Actually, a license is required in MI for any job over $600.00.And they frown upon breaking a single job up to get under that threshold.That's why an unlicensed contractor in MI cannot have a valid enforcable contract for an amount over $600.00.JT
True for residential, but not commercial (which this job was):
http://www.michigan.gov/cis/0,1607,7-154-35299_35414_35455-114259--,00.html
View Image Is a license required for commercial building (offices, schools, factories, etc.)?
View Image Michigan does not have a law regulating commercial builders, sometimes referred to as "general contractors". Licensing is required for residential work, including combination residential and commercial structures. For more complex projects, a licensed architect or professional engineer may be required to file plans for the project at the time an application for a permit is made.
"I never met a man who didn't owe somebody something."
Buttski, If I'm reading your description correctly, you are saying the veneer is coming off the backing, not off the wall?
The phenolic backing is stuck to the wall, the veneer is loose from the phenolic?
Joe H
No, everything appears to be coming off the wall.
"I never met a man who didn't owe somebody something."
I would say that legally your not liable, see that you are no longer in business. Despite the fact that they may be deserving of less than repectful treatment it probably isn't the most professional thing and could end up biting you in the butt.
However, your name may be more important to you than whether or not you are legally liable. I might be inclined to stand by my work and get the material supplier to stand by there material. I would be inclined to find the reason for the bubbling. ie: a water/moisture/chemical etc. source before fixing it.
Should you ever return to business it might help if no one is out there bad mouthing. Besides, what does it take to replace a couple pieces of veneer?
Dave
I agree with all of that except: "Besides, what does it take to replace a couple pieces of veneer?"
It requires: moving the furniture out, carefully removing all base, casing and crown trim, stripping off the old veneer, scraping all of the old adhesive off the drywall, repair the drywall where necessary, prime, then purchase, cut and install new and better veneer...all after hours or on the weekend as I'm working a full time job now.
Also, I'd have to purchase liability insurance again and some tools which I've sold off.
"I never met a man who didn't owe somebody something."
Good point.
Did you do it as a business or as an individual? If your business is no longer trading, you have no legal liability but perhaps a moral one.
If you did it as an individual you're probably on the hook.
Edit. I responded to your OP, an impressive 78 posts ago!
Edited 6/27/2007 11:37 am ET by Womble
Edited 6/27/2007 11:37 am ET by Womble
Did you do it as a business or as an individual? If your business is no longer trading, you have no legal liability but perhaps a moral one.
When a corporation stops doing business, even if it was formally dissolved, it continues in existence for purposes of being sued. Of course no longer doing business as a sole proprietor doesn't do anything to one's liability, which continues unchanged.
Interesting. What would be the point of suing an entity that has no assets? Or are there assets? If so what would they be.
Interesting. What would be the point of suing an entity that has no assets? Or are there assets? If so what would they be.
As to a corporation, if, at the time it dissolved, it had any assets and they were distributed to shareholders, the assets may have to be returned by the shareholders to the corporation for distribution to creditors. Frequently, when a small corporation goes out of business, the shareholder just takes the assets, such as tools, computers, etc. That may support a later claim that the corporate form should be disregarded and the officers/directors/shareholders be held personally liable. The proper way to do it is for the corporation to sell the assets to the individual at a justifiable price. Obviously, most businesses never do this and nothing ever happens, but my business is devoted to the exceptions.
As to a sole proprietorship, by definition there never was a separate "entity," so any personal assets are available to creditors of the business.
So, if I want to get out of my business, I sell the assets to myself and then pay myself a bonus equal to the selling price of the assets.
Do we then have a business with no assets that can be recovered/liquidated?
smslaw wrote, "As to a sole proprietorship, by definition there never was a separate "entity," so any personal assets are available to creditors of the business."
Your proposal only works if the business was a corporation.
Great! The supplier finally got back to me after I sent them pics of the bubbling veneer and they now have amnesia about telling me how to apply it to the walls.
They say this material was unsuited for this application. Well no shid, I know that now, but it was fine when they sold it to me...but they don't remember that.So now what? Do I get screwed for using an inappropriate material that they said was ok to use?What should I tell the customer?
"I never met a man who didn't owe somebody something."
I *think* the law would view you as an expert who is not supposed to blindly take advice from a vendor and stick the poor owner with the result. There may be some protection if the ID required the use of this product, but then again maybe you're supposed to be expert enough to warn them off of it. Lets see what sms says.
Oh boy I'm screwed...And for the record: the only people I'm trying to "stick" are the people that sold me the product and told me it was ok to use it."I never met a man who didn't owe somebody something."
Edited 6/27/2007 7:43 pm ET by Buttkickski
Just thinkin' out loud here...seems to me that you, the ID and the client have all agreed that the problem is related to the material, not the installation. As there's two different backing materials involved, that would tend to confirm where the problem lies. So why would you offer to return the money paid you for your work? That would tend to confirm that you believe that YOU are at fault.
In small claims court, a preponderance of evidence is all that's usually needed to win the verdict for your side. If you take a licensed contractor to court with you, someone who has inspected the job and agrees that it's a materials failure,and then you show photo evidence that the failure occured on two separate backing materials, both of which were supplied to you as ready for installation, that should be enough to get a quick verdict in your favor.
Of course you'd also say that you installed the panels exactly according to instructions asked for and received from the manufacturer. Without written corroboration that's heresay but it's believable when confirmed by an expert witness.
I really wouldn't worry about this. There are plenty of guys who would be willing to back you up in court, just because of the BS that we've all had to put up with at times like these.
I'd keep pointing my finger at the manufacturer until the clients quit trying to get you to fix it or pay for having it fixed. That's where the blame belongs and you can prove it to a reasonable certainty in court.
In the mean time, line up a good witness and get him in to look at the job as an "experienced advisor". Nothing about defending your installation, just looking for a solution. The "solution" of course will be for the client to consult with the product manufacturer.
Having another tradesman on your side may be enough to convince them to leave you alone.
Well, that's a little encouraging and I'll tell you why: When I first started the job, it was originally supposed to be just one wall then the ID and client liked how it looked so much they decided to extend the look to an adjacent wall. I ordered more materials and took my helper for the day to go get them. My helper was standing next to me when I was BSing with the salesman about how the job was going. I told him that we were applying it to the walls with construction adhesive and notched trowel just as he'd recommended and it was working fine. The salesman had no objections, and congratulated me on the progress.My helper remembers all of this conversation. He's also a trim carpenter that's been self employed since 1996 and was helping me because his work was slow. He's had a Residential Builders License since 1996.
-------------------------------------------------------------Shouldn't I at least offer to take it all down to bare walls for them because I am partially responsible since I'm supposed to be the "expert" and now I feel like they're (client) getting screwed worse than anyone else?
"I never met a man who didn't owe somebody something."
Shouldn't I at least offer to take it all down to bare walls for them because I am partially responsible since I'm supposed to be the "expert" and now I feel like they're (client) getting screwed worse than anyone else?
If you do, you're giving them ammunition for court. It can be easily inferred by a judge that when you begin a repair job on your own work, you're admitting blame, fault, responsibility...whatever. Leave it alone. How much can it help, you taking it down? It's only a couple of hours work, right? Let the next guy bid it as is.
I know how you feel. I once was asked by a painter to come on a job and hang some wallpaper for his client. Our deal was for a minimum of one day's pay, the client supplying the vinyl paper and special paste.
Before starting I asked the client about the paste, how it had been selected. He said that the salesman had recommended it specifically.
So I went ahead with the job, finishing the two areas easily by noon. Both the client and the painter were happy. I got paid and went on my way.
Two days later I get a call from the painter, telling me that the vinyl paper is now falling off the bathroom walls. So, to keep the peace, I went over and looked at the job with both of them. It was obvious that the paste was properly applied, just not holding.
I explained to the painter that I'd asked the client about the paste before proceeding with the job. The client confirmed that he'd taken responsibility for that end of it.
I felt badly for the client so I offered to repaper the bathroom, free of charge, if he got new paper and the correct paste from a better source, one I could recommend.
I figured that I'd been paid for half a day's work that I hadn't done so I could afford to be a bit generous with my time. I also wanted to make myself and the painter look like gentlemen contractors, just as you'd like to do in your case. Unfortunately, certain legalities don't allow us that freedom of expression.
As it happened, the client's wife was so appalled at having the heavy vinyl wallpaper fall on her while she was steaming up the bathroom, lying in a tub of hot water (images of Hitchcock's Psycho), that she wanted nothing more to do with papering her bathing area.
So the painter got another room to do. The client was happy because he'd never liked wallpaper in the first place. I wasn't a big fan of it myself but it's pretty easy work, inside a warm home, always reserved for winter time.
Nontheless, had the client not been a reasonable, honest man he might have taken his wife's side and sued me for tramatising his poor defenseless bride. Who knows where that would've ended up.
Edited 6/27/2007 9:56 pm ET by Hudson Valley Carpenter
Well, thanks for taking the time to calm me down a bit, it worked! I really meant no malice and wasn't taking the "easy way out" when I did this job. I do feel bad for the clients as they're trying to run a business amongst this ugliness that I installed.I'll do what you say and not offer a thing to them for fear of implementing myself as knowingly being at fault.I'll keep you (and everyone else) informed as more things transpire.Have a great night.
"I never met a man who didn't owe somebody something."
I can't tell whether to be more impressed by your craftsmanship or ethics.
Back a few years I worked for insurance companies handling cases like this. (Actually litigated construction cases for about 15 years as an attorney.) Often, the cost of the paperwork on small jobs was far in excess of the cost of the repairs. If the people involved focus on getting the problem fixed and if the end user isn't looking for a payday, that makes it easier. One suggestion would be to do the work pursuant to an agreement that liability will be determined in a separate proceeding. After it's done, you can go to arbitration or small claims or whatever and duke it out. By that point, everybody's arguing about a finite number - hopefully a small one.
As far as you admitting liability by going back, I would not agree, at least based on NY law. The idea is that the courts want things repaired, so subsequent repairs are not admissable in court except in limited circumstances. If your concern is hanging yourself by going back, then just do a letter in advance and state in the letter that the work is being done as an accomodation for the customer and it does not represent any admission of liability on your part.
If you are going to have to go to court over this, there are ways to involve the manufacturer quickly. Talk to a local lawyer about those options. Be forewarned that it is very difficult in most situations to collect legal fees so you will likely be out that money as a practical/legal matter.
Good luck.
Don K.
EJG Homes Renovations - New Construction - Rentals
Don,
He's no longer in the trade, doesn't even own the tools anymore. And he has a full time job, unrelated work. So he's trying to avoid any further involvement.
I think he'd be wise to stick to his current position, that the materials are at fault. Let the client and the interior designer pursue their own remedies, including taking him to small claims court. If they know he has a good witness, they probably won't waste their time on it.
He already has a strong defense with photo evidence and an expert witness who can testify as to conversations about how the materials dealer recommended that they be applied.
The client has nothing specific with which to contradict him. Nothing. Our guy performed according to the contract, using the recommended adhesive. He's simply not at fault...period...exclamation point.
If he keeps telling the client all this, politely, they'll eventually understand that it makes no sense to pursue the matter, in or out of court, and that they must find another way to remedy the problem.
Thanks for the advice Don, I hear what you're saying, but I'm not in that biz anymore. I now have a full time job 50 miles away that makes it difficult if not impossible to remove and replace everything that is bad, and I certainly don't have the $$ to pay someone to do it.
"I never met a man who didn't owe somebody something."
UPDATE:
The owner filed a suit against the Interior Designer, who in turn threatened to sue me personally if I didn't fix the job.
The supplier has amnesia and doesn't remember me telling him what the veneer was for, even though I have a witness.
So, given that it'd cost more to fight this thing than fix it, the ID and I have compromised by having him purchase all replacement materials and adhesives and providing explicit written instructions and a waver for the installation.
I will provide the labor. I have a good trim carp buddy who needs work. He will bill me personally $42/hour until the job is done. We expect 40-60 hours so $2500 worse case.
Part of our compromise is that the ID will go after my supplier in small claims for payment of materials. I will go after the supplier for the labor loss. The reason we're doing it separate is because small claims has a $3,000 cap.
Man this pizzes me off...
"I never met a man who didn't owe somebody something."
Do you have any written installation instructions, either from the supplier or the manufacturer? I would think that suing them with just verbal will be difficult.
Jon Blakemore RappahannockINC.com Fredericksburg, VA
Nothing written at all which could go two ways 1) they're at fault for not providing instructions or 2) they're not liable because they didn't provide instructions.
I'm pretty sure I'm going to eat this job, but I am at least going to try and sue the bas$tard$ for what it will cost me to fix it.
"I never met a man who didn't owe somebody something."
Part of our compromise is that the ID will go after my supplier in small claims for payment of materials. I will go after the supplier for the labor loss. The reason we're doing it separate is because small claims has a $3,000 cap.
It would be wise to discuss this with your attorney - if I was the defendant, I would ask the court to combine the cases, which they would likely do (can't sue twice for the same thing), which would push it into a higher court - with higher costs, the requirement for an attorney, etc.
I did discuss it with an attorney who suggested it be done this way. We'd be two different entities suing the same supplier for different payback (him for materials, me for labor).
If we went to a higher court, we would sue for $5K it's going to cost to fix it and the lawyer would most likely get $4K IF we won.
"I never met a man who didn't owe somebody something."
Did you expect anything different?
Have any of the "it's ok to use this material in this fashion" statements in writing?
Yeah, I expected my supplier to admit fault and help me fix this problem.Nothing about the material was in writing except the invoices.
"I never met a man who didn't owe somebody something."
It sucks when suppliers leave their customers holding the bag, and I bet next time technical application instructions are needed, they will be in writing (I know mine will).
I hear you! In hindsight, I should have gotten it in writing, but it was a real brief experience that seemed so innocent that it didn't warrant any requirement. I honestly thought these 4x8 sheets were made for such applications, and I just asked how to apply it and they told me.
"I never met a man who didn't owe somebody something."
OK. AS a corporation I could, theoretically, escape....Very interesting.Do many people sue dissolved corporations? Before this thread, I would have thought it was hopeless.
So, if I want to get out of my business, I sell the assets to myself and then pay myself a bonus equal to the selling price of the assets.
Do we then have a business with no assets that can be recovered/liquidated?
Nothing is ever really certain, but you can certainly pay yourself your usual salary. What you can't do is make an payment out of the ordinary course of business to yourself in order to deprive creditors. Generally, if a creditor is owed a few hundred bucks, he gives up. If he's owed a lot of money, he may pursue every possible avenue of recovery, including, for example, a claim that your "bonus" was a fraudulent transfer. In bankruptcy, it might be considered a preferential transfer, subject to recovery by a trustee.