A case decided in Indianapolis last week
makes the point once again: Any time there’s a dispute on a construction project,
the contractor better have a good contract. Jim Dorey didn’t and paid the price.
Here’s what happened.
A hail storm in December 2012 damaged
the roof of Faye Warfield’s home. Liberty Mutual’s adjuster responded to the claim
and asked a roofing contractor, Jim Dorey, to contact Warfield about repairs. Dorey
made the sales call. He offered samples of shingles and Faye’s daughter signed Dorey’s
roofing contract. At Warfield’s request, Dorey quoted a price for rebuilding Warfield's
chimney before starting on the roof.
Months later, while doing the shingle tear-off,
Dorey discovered portions of the roof deck that had to be replaced. Liberty Mutual
authorized Dorey to do that work too. Dorey added decking to the contract but didn’t
ask Faye to sign a change order. The agreement for chimney work was entirely oral.
When all work was done, Liberty Mutual paid with checks made out to Faye Warfield.
Dorey expected those checks would be endorsed and turned over to him. Surprise!
That’s not what happened. After several months, Dorey had to file suit to collect.
An attorney for Warfield fired right back with counterclaims, alleging violations of Indiana law
and claiming Dorey's lawsuit was frivolous.
Like nearly all states, Indiana sets standards
for residential contracts. Dorey’s contract had problems: His delivery address was
missing. There was no starting or completion date. The notice of right to cancel
was omitted entirely. There was nothing in writing about the chimney. Faye didn’t
actually sign the contract. Her daughter did. Worse, Dorey didn’t have a contracting
license when the agreement was signed and didn’t pull a permit for replacing roof
deck. Warfield’s attorney insisted the contract was void. Dorey had committed a
deceptive act under Indiana’s Home Improvement Contracts Act (HICA) and had no right
to collect the $13,925.78.
Notice this: Warfield had no complaint
about Dorey’s work. Her complaint was about Dorey’s contract.
The trial court decided Dorey lame contract was good enough. Warfield wasn't damaged by any failure of Dorey to comply with
Indiana’s HICA. Warfield appealed. The appellate court awarded Dorey his $13,925.78 under the theory of quantum meruit, the “amount deserved.” After all, it
would be unjust for Warfield to benefit from Dorey’s work without paying for it. But the appellate court also found Dorey's contract to be void.
So Dorey Came Out OK?
Not quite. Notice the date December 2012. It took
Dorey nearly four years in court to get a judgment against Warfield. That cost plenty. And
because his contract was void under Indiana law, Dorey lost out on collecting
attorney fees. My guess is that his attorney fees were several times the $13,925.78 award. A void contract left Dorey with none of the advantages contractors
are welcome to write into their agreements:- Contractor collects attorney fees if suit is needed to collect.
- Monthly interest is due on late payments.
- Anything not in the contract is at extra charge.
- Changes required by law are extra work.
- Changes are done at the normal selling price of contractor.
- Contractor provides no warranty other than required by law.
- Disputes have to be resolved by arbitration, not litigation.
- Full payment is due when work is done.
- The insurance carrier is authorized to pay the contractor directly..
Moral to the story: No contractor has to use a lame contract.
Drafting a letter-perfect agreement is easy, no matter the state or type of job. Construction Contract Writer handles all the details.
Just check a box to put any of these advantages in your agreement. The trial version is free.
