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A tree service company comes to remove some large trees from my yard.
In the process they rut out the yard, run over and break multiple
multiple shrubs with the equipment they are using and drop large
portions of the cut trees onto other trees, damaging them. The
driveway was also cracked and completely broken in one area. The
contract was to also to grind the stumps for the cut trees.
After finding the damage I notify the company that I will not be
paying until I get estimates for the damage and that I will pay him
the difference of his cost minus the replacement for damages. He
refuses to come finish the work claiming he will not get paid, so why
take the chance to lose more money. And he refuses to give us his
insurance information. The contract we have states nothing about
damages, and the we must pay the entire invoice once the work is
completed. We were never informed about the possibility of such
damage or how the work was going to be done and the type of equipment.
We watch the work the first day and no damage was sustained, but the
following day when were not home all of the damage occured.He has
become threatening and I have a feeling this will end up in small
claims court so I have documented everything and I have a witness who
saw the damage as it took place. I have tried to be reasonable with
the company and nothing is working.
My questions:
Am I going about this the correct way?
Would the BBB be my next step, or should I get a lawyer?
Is he in breach of contract because he has not finished the work?
Any help, comments, or advise would be greatly appreciated.
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"grin-n-bare-it" <architeach@gtcinternet.com> wrote in
misc.legal.moderated:
A tree service company comes to remove some large trees from my yard.
(and did quite a lot of damage)
The contract we have states nothing about damages
After finding the damage I notify the company that I will not be
paying until I get estimates for the damage and that I will pay him
the difference of his cost minus the replacement for damages.
That was a mistake on your part. I understand why you did it, but
still it was a mistake legally.
What you should have done was (a) notify him of the damage, (b) give
him a reasonable opportunity to repair what can be repaired, and (c)
negotiate financial settlement for what can't be repaired (like
damaged trees).
All this is separate from your contract, which obligates him to do a
certain job and you to pay him for that job. The law usually doesn't
allow A to deduct from money owed B unless their contract provides
for it. If he can't or won't repair you hire someone else to do it
(at customary rates for your area), pay the second guy, bill the
original contractor for the amount, and then sue him if he refuses
to pay.
And he refuses to give us his insurance information.
This isn't an auto accident: he has no obligation to tell you
insurance information. You don't file a claim with his insurance
company or sue his insurance company, you file a claim with him or
sue him. His arrangements with his insurance company are none of
your concern.
Am I going about this the correct way?
No -- see above.
Would the BBB be my next step, or should I get a lawyer?
The BBB is usually a waste of time. You can notify them (so that
others might possibly be less likely to hire this guy), but it's
very unlikely you'll get any help there.
Does this guy have a license from the city or county? many
localities require contractors to be licensed, and you might have
better luck with the licensing agency.
Is he in breach of contract because he has not finished the work?
Yes, but unfortunately your own hands are not clean here. At this
point you're both in breach of the contract, he because he hasn't
done the work and you because you've told him you won't pay.
(Technically, you may or may not be in breach, but you've notified
him that you intend to breach the contract.)
Any help, comments, or advice would be greatly appreciated.
One thing you haven't told us is the financial amount of the damage.
Win or lose, a lawyer is going to cost you hundreds of dollars
(thousands if you have to go to court). That may determine whether
you go the small-claims route. Either way, you can recover only the
actual dollar value of the damages, most likely nothing for the
annoyance or your time and definitely not your lawyer fees.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
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grin-n-bare-it wrote:
[tree removal contractor is said to have done some damage to items not
to be removed such as driveway]
My questions:
Am I going about this the correct way?
You haven't done much yet other than annoy the contractor and cause him
to cease working for you. You said you weren't going to pay him then you
complain because he didn't finish the job after you make this threat.
What would you do in his place?
Don't worry that he won't tell you his insurance info. Why should he
unless he's compelled to by your State's laws?
Would the BBB be my next step, or should I get a lawyer?
No harm in the BBB if he's a member. Otherwise, it's a waste IMO. Give
it a shot. An attorney is usually effective, but can be expensive and
isn't a guarantee of the results you envision.
Is he in breach of contract because he has not finished the work?
IMO, you effectively breached by saying you'd not pay. Here's the rub.
You need to demonstrate that the damage you claim was due to the
contractor's negligence. That is, he did the work less well than
standard for doing this manner of work.
Let's just take ONE example - your cracked driveway. You blame the
contractor, but is this really his fault? Could you driveway be
substandard or undermined? Was is reasonable for the contractor to
expect your driveway to be proof against whatever trucks he parked
there? So was the contractor negligent and therefore responsible for the
damage?
Any help, comments, or advise would be greatly appreciated.
What is obviously a tort to you, may not be to a judge. You are clearly
aggrieved, but are you legally strong? I'd need to know a lot more to
even render a wild guess.
-paul
ianal
--
paul DOT cassel aT
gMail dot COM
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