my in laws are having problems with an independent contractor

[jd_1138]

My wife's parents paid $25,000 for an above ground pool, and it was installed last October. The contractor didn't completely finish it. He still has to put up the metal railing around it and install the filtration system, heater, stairs and some other minor stuff. He told them to call him when they want to open the pool, and he would come by and finish it.

They called everyday for a week, and he isn't calling back or answering. He must be out installing pools now. He already made money off my wife's parents, so they aren't a priority now. They called the company that they bought the pool off of, and they said: "he's an independent contractor; he doesn't work for us." But they sent him out to do the installation, so for them to blow off my wife's parents is not good. The pool company owner said he'd call the contractor and ask why he isn't calling them back. The pool company owner called back and told my wife's parents: "the contractor said he keeps calling you but you never answer your phone" which is a lie.

Also, it turns out that the installer didn't order the heater and some other parts for the pool. He charged my wife's parents for it but never ordered it from the pool company. So he must've pocketed that $1,500 as extra profit for himself -- on top of the money he made for installing the pool. They have a receipt for everything. Looks like he's committing fraud and breach of contract. I told them to call the pool company and demand that they send another person out to finish the pool, and if they won't do that, they should call a lawyer. Anyone know about the laws pertaining to independent contractors and their relation to a company that sells the product? It'd be nice to have more of an understanding of what we're dealing with. I am not sure if they have a potential claim against the pool co. itself besides the independent contractor?

 

[_JP_]

Looks like this is headed to court. Never pay off a contractor until the work is done. Money in advance for materials is a different thing. If the contractor was hired through the pool company in any way, then the pool company might be held responsible.

 

[dpmtherrien]

Have them run it by a lawyer. Most lawyer's offer a free case evaluation.

Not sure of the laws out where you are, but you may be able to sue in a court without the need of a lawyer. Best bet is the free consultation with a lawyer first.

 

[Wullie]

I work with contractors every day.

Too late for your folks, but get EVERYTHING in writing. Call it a contract. All of my contractors are low bid. Those that win the contract are actually the losers because they left the most money on the table. Where my deal differs than most is or contractors are bonded and if they don't perform, I can fire 'em and the bondsman is required to find a replacement and pay the replacement his price while we pay the bondsman at the original price. Gets kinky some times, especially when the guy that wins the contract has no idea of what he is to be doing. We get a lot of that in this economy as some guy thinks he can do what we require and he hasn't read the requirements. I've had 'em default without ever showing up or roll up at the pre-job meeting.

Without anything hard and fast in writing with signatures pertaining to what is to be done, it can be difficult to make the clown perform. Oral contracts can be enforced in court but it is extremely difficult.

Best case would be for your folks to contact a "contract lawyer". He can decide which way to go. Sometimes all it takes is a letter from a legal outfit to get their attention.

I hope they get it worked out quickly and with no more head aches than they already have.

 

[jd_1138]

Yeah it's all in writing, and they have everything written down in contract form. But the pool company is passing the buck and blaming the contractor (who still works for them presumably). I guess you almost need 2 contracts -- one with the general contractor (the pool company) and one with the subcontractor (the installer)? Sheesh. 95% of the work is done and completed, it just needs finishing and buttoning up. The pool company should send out another guy ASAP and get it corrected or they will be hearing from the in-law's friend (who is an attorney).

 

[jd_1138]

It's the fancy metal kind with a deck like thing around it and a fence around it. They last for like 20 years. It might have been around $20,000 or so.

 

[Wullie]

Yeah it's all in writing, and they have everything written down in contract form. But the pool company is passing the buck and blaming the contractor (who still works for them presumably). I guess you almost need 2 contracts -- one with the general contractor (the pool company) and one with the subcontractor (the installer)? Sheesh. 95% of the work is done and completed, it just needs finishing and buttoning up. The pool company should send out another guy ASAP and get it corrected or they will be hearing from the in-law's friend (who is an attorney).

Go after the one with the deepest pocket which would be the pool company. They hired the sub, he's their puppy and he's peeing on their carpet by not performing as your parents agreed in the contract. Let the pool company clean the mess and make things right for your folks.

 

[_JP_]

Go after the one with the deepest pocket which would be the pool company. They hired the sub, he's their puppy and he's peeing on their carpet by not performing as your parents agreed in the contract. Let the pool company clean the mess and make things right for your folks.

I think that's where the problem lies with the pool company saying they aren't responsible. The contractor is not subcontracting through the pool company, so the pool company isn't paying him. Instead, he is totally independent. That means you have to go after the contractor.

 

[Wullie]

Sounds like it. Get a lawyer to write him a LETTER of doom. If that doesn't get his attention, go after him with everything they've got and don't let up until he performs.

Otherwise, they can hire another contractor and pay him and then go after the original guy for what they paid plus costs.

Sorry to hear the old folks are getting jerked around.

Hope they get it sorted out with no pain.

 

[Argonaut]

If the installer was sent as a representative of the pool supplier as part of the purchase of the pool, meaning they wrote one check to the supplier for the pool and installation, the pool supplier is responsible. I would take it to an attorney, let the next contact they hear from anyone on the matter be from the attorney.

 

[scottish steve]

So the pool company referred this job to someone, but they've no responsibilty for it and cannot be held liable? But you had no choice in who did the job? Go through every piece of correspondence from the start of the job and look closely at what the pool company said. If they used the word "our professional installation team" or "representatives will ensure the highest quality of fit and finish" or anything like that, then gave you no choice in who did this job, they MUST be liable. Bear in mind that whoever answered the phone is probably paid and trained to do exactly what s/he did in the way she did it. Get passed them and onto the legal dept. Be courteous and ask them which individual deals with breach of contract/ fraud cases for your lawyer to deal with. This might get their attention.

 

[Slash McCoy]

I am not a lawyer, so YMMV but first of all, GET ONE. Second, have your lawyer GET SOME SCARE LETTERS OUT so they know you mean business. Both the pool company and the contractor. Third, maybe your lawyer will think this is a good idea or not, but I think that both contractor and company should be named as defendants. You don't want to be going back and forth because each one manages to fix the responsibility on the other. Also, as previously pointed out, the pool company probably has the deeper pockets. They hired the contractor, even though your inlaws hired him for that particular job. And if the pool company advertises the pool and equipment as a complete package and you did not receive it, they should have considerable responsibility. There are lawyers, and there are lawyers. The guy who REALLY reads the contract or sales agreement and reviews your correspondence and the company's advertising, and really considers the options and the different strategies and tactics that might work, is worth his money. The guy who spends a half hour speed reading your documentation and dictating a letter that gets nothing but empty promises to do right from the offending parties is just a parasite.

FWIW I think that as you have explained the situation, it is winnable. Maybe call them once more, though, and set a deadline for work to begin, say, 3 days from now, at which time you will hire qualified legal counsel, and let them know that any slacking or delaying for any reason will have you on the phone to your lawyer. Certified letters might be even better. Small price to pay, for legal proof that they received your message (or refused it). I am thinking that probably your inlaws just want their pool finished, not a Roe vs Wade type knockdown dragout.

 

[legrandfromage]

Have your parents lawyer friend determine whether or the contractor was acting as an "agent" of the pool company; if so, then they are open to suit along with the contractor.

In many places there is a small claims court (town court, etc.) that will handle claims up to a certain amount. The plaintiff can present the case himself; in some places a corporate entity must be represented by an attorney (a negative for the contractor). The judges usually try to have the parties settle, but if you can present a paper trail showing that you have tried to resolve the issue and the other party has done nothing, I think it may tilt in your favor. If the other party does not show up (as happened when I once did this) and there is evidence that you tried to resolve the issue, then you may well get an immediate judgement. If the contractor is "judgement proof" (as many are), then you will have to go after the pool company.

If there is a local TV station and/or newspaper that plays consumer advocate, have your parents go to them about their situation; nothing looks worse than a local company taking advantage of old folks.

 

[Gamad]

see my signature.

 

[Doc4]

The laws can be different in each state and jurisdiction, so beyond telling you to go talk to a local lawyer, our advice here is not going to be of great help.

 

[jd_1138]

Thanks for all the great advice guys. I will be using a lot of it. Besides the fact that it's 80 degrees and the pool is sitting there uncompleted, there is the dilemna of my mother-in-law needing to do water therapy rehab for her hip and knees. Exercising in water is low impact and safe, and she can't do that until it's finished, and she now has to drive 20 miles to an aquatic therapy place until the pool gets done.

 

[DaveNJ74]

I went to small claims court once for an unrelated issue but the 10 or so cases ahead of me were all homeowners suing contractors. The stories were all the same. The guy started the job, took some money and never showed up again. It's a shame.

 

[Mick]

It is big enough to be outside of small claims court.

Get an estimate to have it removed and and the yard restored to the condition it was before they started. Add that to the total price of the pool and go afer the pool company and the contractor for double what they paid.

They will have a pool within a few hours of both companies being served for a $50k case

 

[rickboone1]

Small claims has a 5k cap, right?

25 grand for an above ground? WOW!!! That's crazy. I thought you could get an inground for that. We have an underground. It was free. The kids have a great time looking for it.

 

[jd_1138]

Good news. The jerk finally showed up and finished the pool yesterday -- the very day they went to talk to their attorney. I think they paid like $20,000 for the pool. Still too much, in my estimation. My in laws are the types who don't listen to good advice on matters such as this, so they get ripped off by unsavory salesmen. But it is a really nice and large pool, and has a lot of features like a heater/cooler and a full fence and gate.