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any pool contractors are currently “underwater” on projects that they sold months in advance of starting work. COVID related price increases, labor shortages and supply chain issues have driven the cost of construction above their contract price. To avoid bankruptcy many have had to revise contract pricing, much to the chagrin of their clients. There are legal precedents which allow a party to the contract to modify the terms and pricing, if there are significant forces that prevent them from meeting their contractual obligations. In simple terms, the court will not force a seller (pool builder) to perform, when the cost of the raw materials has risen to the point of losing money on the project. The same in reverse hold true, if a property owner has lost their source of income, the court will not force them to build a pool.
These are the basic principles of “force majeure” and “commercial impracticability,” found in the Uniform Commercial Code (UCC), section 2-615. The UCC is the framework which governs business transactions and contracts, though they may vary slightly from state to state. KEEPING POOL CONTRACTORS OUT OF THE COURTROOM A client contacted a pool contractor, wanting a bid to perform repair work on a job completed by another contractor. The client said they were not pursuing litigation or making an insurance claim – they just want the project fixed correctly. If you find yourself in this situation – tread carefully. ONLY provide a written estimate of your proposed repairs and your installation specifications.
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POOL MAGAZINE - VOL 1, ISSUE 1
Navigating Legal PAOLO BENEDETTI Oftentimes, once the client receives the estimated cost of repairs, they will change their mind about litigation or filing an insurance claim against the original contractor. If you made statements about the cause of any failures, quality of the workmanship or code compliance, it will come back to haunt you. The pool contractor was subpoenaed to appear in court, to repeat the verbal & written statements he made about the causation and workmanship. He was also only compensated at a rate predetermined by the court – less than minimum wage, like a juror. He was also sued
Op Editorial
by the original contractor for slander & libel, due to some false assumptions he made and had expressed about the failure. It is human nature to want to impress people with our knowledge. But, this is the time to “bite your lip.” It is best to listen to the client’s complaint, take diligent notes & copious pictures and prepare a repair estimate back in the office. Do not discuss the workmanship or the suspected cause of any failure. Perform a thorough inspection, forensic evaluation or testing and render a written opinion – for a fee. Stay out of the courtroom, by learning what not to say.
