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PAXFREON
10-02-2006, 03:42 AM
Hello fellow ***** slingers..

I have a problem that maybe someone could shine some light on for me. About 3 months ago I installed a used 10x20x10 walk in freezer for a gentlemen who bought everything at auction. He contacted me to install the equipt. I recomended that he buy a new condensing unit and controls since the unit was going to be installed on a rooftop. He basically told me the "equiptment was working fine where it was and should work fine for him. I wrote up the proposal stating that the customer supplied all the equiptment which was used and I recomneded he at least up grade the controls sice they looked a little beat up ( defrost timer was rusting a little bit on the gears, the low/high pressure controls were sticking until I sprayed WD40 on them, the fan cycle control was all rusted out) I told him this before I started anything. After finishing the installation the unit worked good for about 2 mos...then problems started occuring.. 1st the evap fan went bad, then one of the electric defrost heaters went bad to the point where I had to rewire the entire evaporator. I billed him for the wor and after a little complaining and price chopping he paid. Three weeks ago the compressor went bad in the middle of the nite and he lost roughly $6,500 in product. Yesterday I received a letter from his attornery stating he is suing me because it is my fault the equiptment failed!!!! I knew I should of never touched this job to begin with because it's not worth the head ache, but I was a little slow and this guy is a friend of one of my first customers who is a personal friend of mine. My question is how do I handle this? I'm scared to death. I cover liability insurance but i'm not sure if they cover the installation of equiptment with no factory warranty...Any advice would be helpful. and a word to the wise "STAY THE FU#@ AWAY FROM USED EQUIPTMENT.

Thanks,

Paul

Abe
10-02-2006, 08:47 AM
Hello fellow ***** slingers..

I wrote up the proposal stating that the customer supplied all the equiptment which was used and I recomneded he at least up grade the controls sice they looked a little beat up ( defrost timer was rusting a little bit on the gears, the low/high pressure controls were sticking until I sprayed WD40 on them, the fan cycle control was all rusted out) I told him this before I started anything. After finishing the installation the unit worked good for about 2 mos...then problems started occuring.. I knew I should of never touched this job to begin with because it's not worth the head ache, but I was a little slow and this guy is a friend of one of my first customers who is a personal friend of mine. My question is how do I handle this? I'm scared to death. I cover liability insurance but i'm not sure if they cover the installation of equiptment with no factory warranty...Any advice would be helpful. and a word to the wise "STAY THE FU#@ AWAY FROM USED EQUIPTMENT.

Thanks,

Paul


Hi Paul,

Im sorry to hear youre in this strife but let me see what you can do. It would help if you broke your post up into paragraphs , with each issue seperate. Its easier to read that way.


About 3 months ago I installed a used 10x20x10 walk in freezer for a gentlemen who bought everything at auction. He contacted me to install the equipt. I recomended that he buy a new condensing unit and controls since the unit was going to be installed on a rooftop. He basically told me the "equiptment was working fine where it was and should work fine for him.


You were fitting second hand stuff James, equipment which was old and had no warranty.

Further, you advised him to replace condensing unit, customer refused. You offered no warranties, I cant see how you are liable?

The only liability could arise from faulty installation which led to the failure of the unit.

Your customer would have to have this report by an independant consultant who can verify that the quality of the installation itself was faulty and led to the demise of the compressor.

I think this unlikely given the age of the compressor in the first place.


1st the evap fan went bad, then one of the electric defrost heaters went bad to the point where I had to rewire the entire evaporator. I billed him for the wor and after a little complaining and price chopping he paid.

So, its old gear, things fail, its not your fault??


Three weeks ago the compressor went bad in the middle of the nite and he lost roughly $6,500 in product. Yesterday I received a letter from his attornery stating he is suing me because it is my fault the equiptment failed!!!!

Again, the compressor was old, where was his insurance??
His insurance should cover his loss.

This is what I suggest you do:

Go to court, contest it.

Get some of your customers to give you letters which state the quality of your work.

Take a customer with you to court to verify you , your work, etc

Put in a counterclaim for all your costs relating to fighting his suit

If theres anything else that comes to mind, Ill post it.

Send me a PM and pass me your e mail address

Abe

US Iceman
10-02-2006, 03:38 PM
I recommended that he buy a new condensing unit and controls since the unit was going to be installed on a rooftop. He basically told me the "equipment was working fine where it was and should work fine for him.

Boy, does this sound familiar. I have been through this several times. Yes, he told you the equipment was working fine, etc., etc. It was his decision to do this, but he is now trying to blame you for his decision. This type of logic is often used.


I wrote up the proposal stating that the customer supplied all the equipment which was used and I recommended he at least up grade the controls since they looked a little beat up...

The first point I would make is putting all of your recommendations in the proposal. Include the cost for each as an option.

I think you also have to include the potential liability for each option. Perhaps something like this for example...

We recommend the condensing unit be replaced due to uncertain operating history and age. The installation of used equipment does not provide guarantee of continued operation or provide for replacement costs for said equipment or owners products in storage.

I have found that you quite literally have to spell everything out and cover all the bases in writing. The customer signs the proposal, which states his selection of the options and awareness of your recommendations and potential liabilities for his decision.

I found from experience it is better to completely state any and all potential issues. I would provide a list of what my work would cover and the items that would be replaced during the installation. I would not have oiled the time clock. I would have replaced the time clock, pressure switches, etc. Anything that looked questionable.

Otherwise, the poor dumb soul who made the decision to save a few bucks will make your life miserable. In his mind, all of these problems were created by you. After all, it worked fine before. See the problem???

When the first set of problems popped up...


1st the evap fan went bad, then one of the electric defrost heaters went bad to the point where I had to rewire the entire evaporator

... I would have written a letter to the owner, and informed him this was to be expected as the equipment was used and that anything could breakdown at anytime. Reiterate, your position on the used equipment.

None of this will keep you out of court, but it does provide background information that you have performed "due diligence" in pointing out the potential pitfalls to the owner.

In other words, you told him what could happen and he made the decision.

Follow Aiyub's advice. It is very sound.

Some secondary comments... I used to charge more for installing used equipment because of the problems you are seeing. Protect and cover yourself. In the long run, used equipment is more expensive than new.

Unfortunately, some owners have to learn the hard way.:(

Peter_1
10-02-2006, 06:53 PM
Pax*****,

Sounds so familiar.
But what they try to do is intimidating you with a lawyer. Most are scared to dead if they receive a letter from the court or lawyer.

As you probably knew, I'm a judicial expert for the Belgium courts, so I handle very often this kind of
problems.

Think Aiyub gave a very complete and correct answer. They only can blame you if you made professional faults, all the rest is inherent to the age of the used items.

Second, in the EU is a law that says that you're obligated to repair all the damage occurred due to a fault but that you also have to pay the damage that followed due to your fault. So, if you mis-wired a compressor, then you have to replace it for free but they can sue you also for the loss of goods due to this failure.
Loss of goods is normally covered by the insurance of the owner if he has an insurance for this. Most customers I know haven't a insurance for this and many times they ask me if I can 'arrange something' via my liability insurance.
Which I always refuse of course.
If you're sure you haven't made professional mistakes, let them go to court. Negative side of all this is that you will also need a lawyer which will cost you a lot.
We're insured for the cost of a lawyer.
Cost us +/- 700 € to 800 €/year which is very cheap.

You have to answer their letter within a certain time legally, otherwise you agree completely with what they're saying.

State in this letter also that you disagree completely their statements and point them to the fact that you have a written prove that you have warned your client.

If we can speak here of a client.

End your letter with a judicial phrase - i know the Dutch words for it and don't know the exact English translation and don't know also if this has the same judicial grounds as here - which says..will try to translate it...
'This letter was written under all reservation, with retaining of all my rights and without any disadvantageous declaration behalf my side'

Sometimes you write things that were meant completely otherwise then you wrote or that can be interpreted another way you meant, or they can interpreted it in a way that they attack you with what you wrote.

it's easier to explain technical matters:D

US Iceman
10-02-2006, 10:06 PM
it's easier to explain technical matters

Peter, you make a very good point. Anything written or spoken has a way of being interpreted into meaning something else.

A simple sentence or explanation can quickly become something that was not even close to what was intended.

I agree with you on your comment. It IS easier to explain technical matters, rather than legal issues. This is why it is important to have a reliable attorney who knows his business.

chillin out
10-02-2006, 11:34 PM
Go round and kick his a$$, then at least he has a real reason for taking you to court.

Or you could take Aiyub`s advice.

My way is more fun,

Aiyub`s makes more sense.

LOL

Chillin:) :)

Andy
11-02-2006, 08:31 PM
Hi Pax*****:)

in Ireland this senario would probably not happen, it would not be perceived as the done thing.

If someone went to sue me I would have a word with someone either in their family or a local comunity represenative (clergy or politician or the likess), suggesting that they desist.

If that didn,t work I would send then a solicitors letter stating the error of their ways (finishing it with out prejudice).

We would not carry out work without vetting a customer thru the local grape vine. (is yer man a good payer, what about yer man down the road)

It's a small world someone will know him and his history.

Ask for references and check them out before carrying out work.

Reminds me I must check out the owner of my latest sale:D

Kind Regards. Andy:)

Abe
12-02-2006, 04:42 PM
Paul, just one more thing.

When your costomer, or claimant commissions a consultant to prepare a report which details what went wrong with the compressor, then by law you must be present when he undertakes the checks.

It cannot be one sided, or else he the report will be biased.

Tell your customer by letter, that you want to be present at the time and also to answer any questions the tester has. Dont engage in any discussions with the customer, unless he wants to withdraw his suit, and reach a compromise.

I would also suggest you complete a record sheet detailing all work carried so far to date, with comments appertaining to condition of parts replaced, and what required replacement.

When you go to court it helps when all your paperwork is in order. It makes you look good and proffessional.

Take also with you to court a member from a refrigeration fraternity who has experience of compressors and failure modes, so in Court he can support your argument that an old compressor can fail at any time, even new compressors are prone to failure at times.

Judges dont like being bogged down in long winded arguments. They prefer when you arrive in Court prepared with all the necessary papers, proofs, etc

They dont like having to decide who is telling truth.

Also, your demeanour is fundamental. If you look and talk like a well mannered individual, and offer due respect, the Judge will take an instant liking to you, and will work towards favouring your points. If you come across as a fumbling, argumentative, interrupting , clueless chancer........

Well............youll be a goner

Good luck

And, getting a letter from an attorney can be stressful. Dont be, If youre confident about the standard of your work, you have nothing to fear.

US Iceman
13-02-2006, 12:56 AM
Judges don't like being bogged down in long winded arguments. They prefer when you arrive in Court prepared with all the necessary papers, proofs, etc

They don't like having to decide who is telling truth.

Also, your demeanour is fundamental. If you look and talk like a well mannered individual, and offer due respect, the Judge will take an instant liking to you, and will work towards favouring your points. If you come across as a fumbling, argumentative, interrupting , clueless chancer........

Very good advice with this...

You do not want to get the judge upset with how you handle yourself in court. A big asset is to have complete documentation with dates and explanations. This shows the sequence of events in very clear terms, that do not have to be discovered by question and answer sessions.

Peter_1
13-02-2006, 07:56 AM
Aiyub, if you ever wanna quit refrigeration, there's still another profession for you: lawyer.

What you said
When your costomer, or claimant commissions a consultant to prepare a report which details what went wrong with the compressor, then by law you must be present when he undertakes the checks. It cannot be one sided, or else he the report will be biased is very true and I forgot to mention this.

I realise now that these rules are also valid in the UK.

What you said about paper work is a fact: a judge is not a technical person an you must place yourself in the position of the judge. If you sat there try to imagine how they can convicne you without going to technical, if possible, not technical at all.
Try to compare it with situations you expect everybody should understand it. Compare it with a car - almost everybody has one - when you want to explain something technical.

I often explained the need for a DT over an evaporator with a heating: you can't heat your house to 20°C if it's outside freezing and you're making water of 20°C. The water has to be warmer.

State also that the unit went well the first 2 months. If something was wrong, the nit should have failed the first day.
There's also something like the 'causal connection' (fewwww, difficult in English) between an action and a fault.
There must be a prove that there is a connection.
If there isn't a causal connection, then this was a hidden failure that you couldn't know.

walden
13-02-2006, 08:34 AM
Get your case brought before Judge Judy and you'll win with no problem!

afeef
13-02-2006, 08:56 AM
dear
a common period of insurance time is given to used equipment is 1 week , (for new equipment 1 year)
it is his fault to instaull used and old equipments(cause cheaper for him)
discribe this to judge ,
good luck and god be with you always
afeef

Abe
13-02-2006, 04:39 PM
State also that the unit went well the first 2 months. If something was wrong, the nit should have failed the first day.
There's also something like the 'causal connection' (fewwww, difficult in English) between an action and a fault.
There must be a prove that there is a connection.
If there isn't a causal connection, then this was a hidden failure that you couldn't know.


In law we refer to it as Causation, in the Courts they use a " but for test" or in Latin, causa sine qua non


If the compressor failed because of negligent installation then its a cause.

If the compressor would have failed anyway, it is not a cause.

The but for test is a "rule of thumb" but it quickly establishes where the liability lies.

This forms the crux of the argument. Did the compressor fail because of some act or part by the defendant.

ie: was the installation wrong? Was there something in the installation that caused the compressor to fail?

ie: slow leak
High head pressure
Power surge
Liquid floodback
Wrong gas
contaminated oil
non condensables
dirty filters or condenser coil

As the system worked for 2 months satisfactory , I would say no,

The fact that compressor was old, ( how old?)

A typical life span is around 5 years for a small commercial compressor

If this compressor was around that age, then it was ripe for failure

In my opinion, even the best installation practice would not have saved this compressor. It was simply wear and tear, or end of life.

Pax***** does not indicate the age of the compressor, which is quite a pertinent factor. He does say he advised customer to renew so I am assuming it was in bad shape.

The other areas are foreseability and remoteness of damage. I feel it IS foreseable that in the event of failure, stock would be lost and the damage was not too remote.

Therefore, My argument would rest squarely upon the " state of affairs" ie: compressor likely to fail.

frank
13-02-2006, 08:36 PM
Good points chaps

Afeef has a point
a common period of insurance time is given to used equipment is 1 week , (for new equipment 1 year)


What guarantee was given to the customer at the time of installation? I'll bet that the guarantee only covered the installation and not the equipment.

Is the claim outside of this time scale? If so then there is no case to answer.

Peter_1
13-02-2006, 09:02 PM
You see I was right, Aiyub can go straight start as a lawyer.;)

Abe
13-02-2006, 09:48 PM
Thanks Peter :)

And anybody want some free legal advice, just form an orderley queue.

I can assist in most areas, including murder!!

B G Scott
27-08-2009, 02:31 PM
The best advice I ever got from a legal friend was "He who contacts last, contract best"
ie. Confirm acceptance of the contract in writing and enclose a copy of your terms of business, which should clearly state that these contract conditions stand in front of any conditions stated or implied in any purchase order or instructions.
Lesson learnt the hard way a long time ago

Abe
28-08-2009, 12:32 AM
The best advice I ever got from a legal friend was "He who contacts last, contract best"
ie. Confirm acceptance of the contract in writing and enclose a copy of your terms of business, which should clearly state that these contract conditions stand in front of any conditions stated or implied in any purchase order or instructions.
Lesson learnt the hard way a long time ago

Usually the Seller makes the offer..............with his terms and conditions

The buyer , accepts, and signs on the dotted line

Are you saying...............Sign on the dotted line, and give to the Seller a copy of your own terms and conditions?

:(

B G Scott
28-08-2009, 09:22 AM
Can't answer for contract law in other parts of the world, but in England and Wales the law is, as I understand it, like this.
You see an object say in a shop at a price, you go in and purchase it, the contract is that you offer the seller the price asked, when the owner of the goods accepts the contract is then made.
I feel that accepting the offer is when the contract is made not when the offer to purchase is made, that is just one side of the contract. but not before acceptance
I would again say that no contract exists between a seller and a buyer until the seller accepts the offer to purchase, and at that point the sellers contract terms should be a part of that contract and not the purchasers terms.
This why I suspect you always get an acknowledgment of order from major companies which either refer to the companies conditions of sale or even include a copy with or as part of the document.

Zpoint
23-04-2010, 10:36 PM
Paul,

"You get what you pay for".

You offered your customer the dependabillity/security that a new refrigeration system provides, he declined. He opted to take a chance and save his money rather than pay for a new system. He gambled an lost.
He was too cheap to pay you to do the job properly, too cheap to aquire an insurance policy and more than likely too cheap to pay for an attorney.

Don't worry too much about this guy.

If the customer won't pay to do the job properly,
don't do it at all.

Upward and onward,

Jeff P.