In the August/September issue we reviewed three real-world RH claims and discussed who would likely be ultimately responsible for those moisture problems. In this issue, we look at who might be on the hook in situations where the alleged problems are more subjective and involve the appearance, color and sound of the floor. Who do you think will end up being responsible for these problems? How might they have been prevented in the first place?
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In the August/September issue we reviewed three real-world RH claims and discussed who would likely be ultimately responsible for those moisture problems. In this issue, we look at who might be on the hook in situations where the alleged problems are more subjective and involve the appearance, color and sound of the floor. Who do you think will end up being responsible for these problems? How might they have been prevented in the first place?
1. Check for Chatter
The Facts: A residential customer’s older solid wood floor had seen its better days and was in need of refinishing. The floor had some character by way of dents, dings and scratches from years of ordinary use. When the flooring professional visited the home, he told the homeowner some of the scratches were too deep to be removed through standard sanding practices, but that overall he could refinish the floor with no issues.
After the refinishing work was completed, the customer raised concerns about light and dark marks that appeared to run perpendicular to the grain and that the floor now had “waves” that were not present before refinishing. Upon further inspection, the flooring professional determined movement in the flooring had allowed vibrations that created chatter marks.
The flooring professional re-sanded and refinished the floor, but the second sanding made the marks even worse. The flooring professional shrugged and said he had done the best he could but the movement in the floor system was a pre-existing condition beyond his control. The homeowner refused to pay the installer and hired a flooring inspector.
The Result: The flooring inspector found the floor did have chatter as the result of very minor movement in the floor. Despite this minor movement, methods were available to remove the chatter prior to completing the final sanding and staining process and to obtain satisfactory results. In the inspector’s conclusion, the floor needed to be completely refinished again.
The Law: The movement in the floor likely would have been noticed had the flooring professional conducted a more thorough inspection before starting the work. The flooring professional could have noted the potential problem for the owner, disclaimed any guaranteed results and followed the necessary steps to eliminate the chatter in the refinishing process. Instead, the customer was led to believe the floor could be refinished in the normal course without any issues. Further, the customer now likely has an additional claim for diminishing the floor’s “life expectancy.” The average solid wood floor may be re-sanded about 10 times, depending on the skills of the contractor, and the flooring professional’s project will now result in re-sanding the floor not once but three times. Absent any disclaimers before the work began, even if the flooring professional’s work was correctly performed and the pre-existing movement condition was truly the culprit, the flooring professional was still liable to finish the floor properly and correct the discoloration and chatter issues.
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2. Fuming Over Fumed Oak
The Facts: A GC was performing a high-end residential remodeling project that called for installing wide planks of fumed European oak flooring, which is known to exhibit a wide range of light and dark coloring. The retailer (who was also the installer) could only supply enough flooring for one half of the project and needed to special-order the other half. Due to a tight production schedule, the GC instructed the retailer to begin installing the materials already in stock and to install the other half when those materials arrived.
Upon completion, the homeowner complained of significant color variations throughout the floor. The GC determined that the first and second shipments differed widely in color and shade and blamed the manufacturer. When confronted, the retailer asserted that even the same lots or shipments of this fumed oak product were known to show wide color variances and that the floor’s appearance was to be expected. Not satisfied with this explanation, the customer refused to pay for the floor until it met his expectations. The retailer hired a flooring inspector.
The Result: In addition to color differences throughout the installed floor, the inspector noticed color differences between a finished flooring sample and the installed floor. While the retailer claimed to have strictly complied with the installation guidelines, the inspector noted a failure to apply another coat of oil as required by the manufacturer. The inspector explained that virtually all flooring manufacturers using hardwax oil require another coat of oil during installation to “bring the life (color) to the floor.”
The Law: Clearly, if an installer fails to follow the manufacturer’s instructions, he or she is liable for any resulting problems. Here, an expert determined another coat of oil per the manufacturer’s guidelines would have prevented the coloration problems. However, the buck stops with the GC, who is ultimately legally responsible to the customer to correct the problems.
In this case, the installer was also the retailer and had not signed the GC’s standard subcontractor agreement requiring warranties for workmanship. To the contrary, the GC had long ago signed the retailer’s credit application that contained language limiting the retailer’s liability. Specifically, the retailer’s agreement limited its liability in all cases to provide replacement product and disclaimed all liability for manufacturer defects and for all labor, including labor to remove products. The retailer also argued that he was off the hook because either 1) the color variations were a manufacturer’s defect; 2) if you install fumed European oak, you risk this type of problem; and 3) even if he had applied the second oil coat, the same color variations would have occurred because the wood was made that way.
The GC argued that the retailer’s credit application only applied to materials and not the retailer’s own labor, that the materials were not defective and the retailer was on the hook since the retailer’s poor workmanship caused the problem. Ultimately the GC and retailer settled and the retailer agreed to provide and install new materials if the GC agreed to remove and dispose of the old ones.
Had this gone to court, the retailer could have been liable for the entire claim (including removing the botched flooring), but the GC likely decided ripping out the flooring was cheaper than the potential cost of litigation. There would also have been significant factual disputes about what the customer was told about the product’s color characteristics and whether to expect wide variations. A clause in the GC’s customer agreement disclaiming responsibility for color or shading variations in the wood could have ultimately left the customer without recourse, but since the retailer admittedly did not apply the second oil coat, this technicality put the customer on solid footing.
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3. It’s a Game of Inches
The Facts: Homeowners contracted for installation of a ½-inch engineered wood floor that was mechanically fastened over an OSB subfloor. The manufacturer’s literature touted the quiet nature of the flooring, which was a main reason the homeowners chose it. However, after the work was completed, the homeowners complained the floor was making “snap, crackle and pop” noises so loud that walking in the hallway at night woke up their baby.
The installer found the flooring moved up and down on the groove side of the planks. Since the manufacturer guaranteed the flooring was quiet, the installer told the homeowners the problem must be related to a manufacturing defect. The homeowners hired a flooring inspector.
The Result: Destructive testing and removal of a number of the planks was required for a thorough investigation. The inspection revealed the flooring was suspended off the subfloor by 0.025 inches to 0.050 inches, allowing the movement on the groove side of the plank that was causing the noise. The installer pointed out the fastener spacing was exactly as required. However, the inspector noted while the spacing was indeed correct, the manufacturer’s installation guidelines called for 1¼-inch fasteners and the installer had used 1-inch fasteners.
The Law: Manufacturers who guarantee a quiet floor generally engineer their products to sit tightly against the subfloor. In this case, a mere 0.025 inches to 0.050 inches is enough difference between the top of the subfloor and the bottom of the flooring to allow movement that created excessive noise. Having installed countless floors, the flooring contractor admitted not checking all of the manufacturer’s instructions and simply using the fasteners he had on hand and had used on many other jobs. Because those instructions were not followed, the homeowner could not assert a warranty claim against the manufacturer and, in fact, all warranties were void. The contractor was forced to absorb the expense of tearing out the flooring, purchasing new product and installing it again.
