Jeff Matthews Posted December 22, 2006 Share Posted December 22, 2006 John needs to re-roof his house. He purchases shingles from XYZ Corp. for $2300. Two months after installing them, a period of heavy rains occurs, and it turns out the shingles were defective. They did not self seal, and rainwater penetrated the roof. As a result, there was $15,000 in damage to walls and wood floors, and another $4,000 damage to furniture. John calls XYZ Corp. to make a claim. The adjuster responds by letter enclosing the manufacturer's limited warranty which is included on the wrapper of every batch of shingles. The limited warranty states that XYZ's liability is limited to the cost to replace defective shingles and does not cover damage to the structure or any personal contents. John admits he did not read all the warranty language, but now that he sees this, there is no dispute it was there. A check for $2300 is enclosed with the letter which says above the indorsement line that "Acceptance of this check constitutes full and final settlement of all claims." What do you advise John with respect to his legal rights? Take the $2300 or reject it and sue? Quote Link to comment Share on other sites More sharing options...
mungkiman Posted December 22, 2006 Share Posted December 22, 2006 I assume John did the roof job himself. Quote Link to comment Share on other sites More sharing options...
tigerwoodKhorns Posted December 22, 2006 Share Posted December 22, 2006 John needs to re-roof his house. He purchases shingles from XYZ Corp. for $2300. Two months after installing them, a period of heavy rains occurs, and it turns out the shingles were defective. They did not self seal, and rainwater penetrated the roof. As a result, there was $15,000 in damage to walls and wood floors, and another $4,000 damage to furniture. John calls XYZ Corp. to make a claim. The adjuster responds by letter enclosing the manufacturer's limited warranty which is included on the wrapper of every batch of shingles. The limited warranty states that XYZ's liability is limited to the cost to replace defective shingles and does not cover damage to the structure or any personal contents. John admits he did not read all the warranty language, but now that he sees this, there is no dispute it was there. A check for $2300 is enclosed with the letter which says above the indorsement line that "Acceptance of this check constitutes full and final settlement of all claims." What do you advise John with respect to his legal rights? Take the $2300 or reject it and sue? Did you find your old law school exams in a box behind your Christmas tree when you dug it out? These are good questions. Quote Link to comment Share on other sites More sharing options...
mungkiman Posted December 22, 2006 Share Posted December 22, 2006 Cross out the endorsement line. Initialthe changes. Cash the check. Quote Link to comment Share on other sites More sharing options...
Kriton Posted December 22, 2006 Share Posted December 22, 2006 Ohhh, I wouldn't advise cashing the check - cashing the check with the notation of "full and final settlement" could be construed as a settlement offer and wherein cashing the check would indicate acceptance of the offer to settle, precluding any further recovery, striking the notation and initialing might be possible - but I wouldn't risk it...How big was the shingle warning, and was it in such a place as a reasonable person would have seen the warning? What is the failure rate of the shingle? Did the manufacturer place into the stream of commerce a product that was known to be defective such that their warning would not relieve them of their negligence? Would alternative design theory come into play? Doesn't this also come down to comparative fault question, regardless of the warning? Wouldn't this also be a submission to the homeowner's insurance policy for full payment, and their decision (by the assignment of the right to recover form the shingle company) whether to sue the shingle co.? I guess I really shouldn't get into this should I? I restrained myself on the whole mitigation of damages/bargained for exchange/duty-breach-damages thing on the last question...I will shut up now. K Quote Link to comment Share on other sites More sharing options...
tigerwoodKhorns Posted December 22, 2006 Share Posted December 22, 2006 Ohhh, I wouldn't advise cashing the check - cashing the check with the notation of "full and final settlement" could be construed as a settlement offer and wherein cashing the check would indicate acceptance of the offer to settle, precluding any further recovery, striking the notation and initialing might be possible - but I wouldn't risk it...How big was the shingle warning, and was it in such a place as a reasonable person would have seen the warning? What is the failure rate of the shingle? Did the manufacturer place into the stream of commerce a product that was known to be defective such that their warning would not relieve them of their negligence? Would alternative design theory come into play? Doesn't this also come down to comparative fault question, regardless of the warning? Wouldn't this also be a submission to the homeowner's insurance policy for full payment, and their decision (by the assignment of the right to recover form the shingle company) whether to sue the shingle co.? I guess I really shouldn't get into this should I? I restrained myself on the whole mitigation of damages/bargained for exchange/duty-breach-damages thing on the last question...I will shut up now. K Hey, no ringers. I don't think Jeff awards bonus points for "the most legaleze in one paragraph" Quote Link to comment Share on other sites More sharing options...
tigerwoodKhorns Posted December 22, 2006 Share Posted December 22, 2006 Ohhh, I wouldn't advise cashing the check - cashing the check with the notation of "full and final settlement" could be construed as a settlement offer and wherein cashing the check would indicate acceptance of the offer to settle, precluding any further recovery, striking the notation and initialing might be possible - but I wouldn't risk it...How big was the shingle warning, and was it in such a place as a reasonable person would have seen the warning? What is the failure rate of the shingle? Did the manufacturer place into the stream of commerce a product that was known to be defective such that their warning would not relieve them of their negligence? Would alternative design theory come into play? Doesn't this also come down to comparative fault question, regardless of the warning? Wouldn't this also be a submission to the homeowner's insurance policy for full payment, and their decision (by the assignment of the right to recover form the shingle company) whether to sue the shingle co.? I guess I really shouldn't get into this should I? I restrained myself on the whole mitigation of damages/bargained for exchange/duty-breach-damages thing on the last question...I will shut up now. K Hey, no ringers. I don't think Jeff awards bonus points for "the most legaleze in one paragraph" Quote Link to comment Share on other sites More sharing options...
Arky Posted December 22, 2006 Share Posted December 22, 2006 Reject & sue on grounds of faulty product by mnf caused property damage. I don't think the limited warranty would hold. XYZ holds itself as professionals in the shingle producing business & a reasonable consumer should at least expect the product to protect against rainwater under normal usage. Put me on your jury...I wouldn't make it as atty. Quote Link to comment Share on other sites More sharing options...
Arky Posted December 22, 2006 Share Posted December 22, 2006 Accepting a check marked pd in full doesn't mean the literal in all states does it? Quote Link to comment Share on other sites More sharing options...
Jeff Matthews Posted December 22, 2006 Author Share Posted December 22, 2006 Accepting a check marked pd in full doesn't mean the literal in all states does it? It generally does when there is a legitimate dispute about what is owed, except for one caveat. Banks and credit card companies get special treatment. There is a statute especially for them. It says that if they designate a special address for billing inquiries, apart from their normal remittance address, an attempt to settle an account through notations on the check to the effect of full settlement is not binding unless sent to the special address. Ever wonder why there are 2 separate addresses on your credit card statements? Carry on..... Quote Link to comment Share on other sites More sharing options...
Jeff Matthews Posted December 22, 2006 Author Share Posted December 22, 2006 There was no neglect by the homeowner, and the shingles were installed correctly. They were defective. The complete warranty information is at the following link. BE SURE TO CLICK "CLICK TO VIEW WARRANTY" UNDER BETTER. It is a PDF file and is contained on every package of shingles on the outside wrapping paper. http://www.gaf.com/General/GafMain.asp?Silo=RES1&WS=GAF Quote Link to comment Share on other sites More sharing options...
pauln Posted December 22, 2006 Share Posted December 22, 2006 This one seems much easier... high dollar class action!!!!! First, realize that he needs a lawyer, but a lawyer may not be interested in this little problem and little amount of money. Therefore, this needs to be a class action which invokes Federal statues for discovery in order to determine the class. This means you don't make polite requests on paper; you get a team to scrutinize the company's records - all of them! If the shingles are defective and the roofing shingle business has been selling them to a lot of folks, well, now we are talking big money. A class action (or the threat of one) and it's intrusive and comprehensive discovery process should put fear in the company - perhaps they will write a check for the full $15000 plus $2300 plus an additional $100k to seal the settlement and keep it out of the public record. Quote Link to comment Share on other sites More sharing options...
sunburnwilly Posted December 23, 2006 Share Posted December 23, 2006 Take the shingle company to court . The jury will LOVE THEM . Quote Link to comment Share on other sites More sharing options...
tigerwoodKhorns Posted December 23, 2006 Share Posted December 23, 2006 This one seems much easier... high dollar class action!!!!! First, realize that he needs a lawyer, but a lawyer may not be interested in this little problem and little amount of money. Therefore, this needs to be a class action which invokes Federal statues for discovery in order to determine the class. This means you don't make polite requests on paper; you get a team to scrutinize the company's records - all of them! If the shingles are defective and the roofing shingle business has been selling them to a lot of folks, well, now we are talking big money. A class action (or the threat of one) and it's intrusive and comprehensive discovery process should put fear in the company - perhaps they will write a check for the full $15000 plus $2300 plus an additional $100k to seal the settlement and keep it out of the public record. Quote Link to comment Share on other sites More sharing options...
tigerwoodKhorns Posted December 23, 2006 Share Posted December 23, 2006 This one seems much easier... high dollar class action!!!!! First, realize that he needs a lawyer, but a lawyer may not be interested in this little problem and little amount of money. Therefore, this needs to be a class action which invokes Federal statues for discovery in order to determine the class. This means you don't make polite requests on paper; you get a team to scrutinize the company's records - all of them! If the shingles are defective and the roofing shingle business has been selling them to a lot of folks, well, now we are talking big money. A class action (or the threat of one) and it's intrusive and comprehensive discovery process should put fear in the company - perhaps they will write a check for the full $15000 plus $2300 plus an additional $100k to seal the settlement and keep it out of the public record. Oh man, another ringer. This forum is full of lawyers, I'm taking my business elsewhere. Quote Link to comment Share on other sites More sharing options...
pauln Posted December 23, 2006 Share Posted December 23, 2006 No, no, I'm not a lawyer... Quote Link to comment Share on other sites More sharing options...
tigerwoodKhorns Posted December 23, 2006 Share Posted December 23, 2006 No, no, I'm not a lawyer... That's exactly what I used to say when I was dating... Quote Link to comment Share on other sites More sharing options...
oldtimer Posted December 23, 2006 Share Posted December 23, 2006 Send lawyers, guns and money...... Quote Link to comment Share on other sites More sharing options...
Mighty Favog Posted December 23, 2006 Share Posted December 23, 2006 Wouldn't this also be a submission to the homeowner's insurance policy for full payment, and their decision (by the assignment of the right to recover form the shingle company) whether to sue the shingle co.? .......and run the risk of getting your home owner's insurance cancelled because you made (third) claim with them in your lifetime....... We're at that stage right now. If we make a third (valid) claim State Farm is gonna say "See-ya!". Me?? I'm not a lawyer either....but I work for a few thousand of them. Quote Link to comment Share on other sites More sharing options...
Arky Posted December 23, 2006 Share Posted December 23, 2006 Lately in my neck of the woods, any claim made & they will not renew...it's becoming a problem. Quote Link to comment Share on other sites More sharing options...
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