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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
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Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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In October of 2001 I entered into a contract to have a Tamko”

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In October of 2001 I entered into a contract to have a “Tamko” brand 25 yr shingled roof put on a rental home. The contract specified “Tamko, Rustic Cedar”. My final bill referenced “rustic Cedar”, the tamko specific shingle, was used. There is absolutely NO language allowing for any type of substitution.

Around November of 2008 I was alerted to the fact that the roof was failing (unbelievably) . I brought this to the attention of the original contractor and asked if they had been having problems with Tamko roofs. The secretary pulled my file and advised me that I had “Certainteed” brand shingles listed on the invoice from their supplier. That there was a class action suit and that I should take it up with Certainteed. I also discovered that it wasn't uncommon to substitute another brand rather than have a crew not working when they are out of the requested brand. “They look the same”.

I sent a letter to the owner of the roofing company asking to discuss a resolution. No response. I contacted the BBB, and they are pretty much toothless. An Attorney, Friend, sent a demand letter with no response. Since then I have had other business to attend to and had to back burner this until now.

I am in Nebraska.
To contract for Tamko, Bill for Tamko and then slip in CertainTeed is fraud of some type, at the very least it is a breach of contract.
I believe the statute of limitations is 6 or 7 years from discovery. ? Am I correct?
In Nebraska can I sue for attorneys fees?
I have the contract, the final invoice, and a recently secured copy of the delivery invoice from the supplier to the roofer with my address on it that shows the wrong type of shingle clearly listed .
This is a large roofer in the area. Should I sue for fraud or breach? This is a $4300 (in 2001) or $7500 deal in 2010 dollars. I want the roof I contracted for. What is my best course of action?
Submitted: 6 years ago.
Category: Business Law
Expert:  Law Educator, Esq. replied 6 years ago.
Under Nebraska law actions alleging a breach of warranty and construction defect are governed by a four-year statute of limitations (which may be extended by two years if the cause of action is not or could not reasonably have been discovered within the four-year period) and a ten-year statute of repose for latent defects. Additionally, there is a 5 year statute of limitation from the date of the breach on a breach of contract claim. Thus, you would have to pursue this on a breach of warranty on latent construction defect. You would need to hire an attorney to pursue the company on this matter and you need to read your contract as well to see if it specifies whether or not arbitration is mandated or you can go straight to filing suit in court. You would be entitled to replacement of the roof at whatever it costs today and attorney's fees would be at the discretion of the court depending on whether or not the court finds they were in bad faith.

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Customer: replied 6 years ago.

Hello Paul,

Yes I just read the contract and there is no provision for arbitration. I suppose fraud would require I show intent were as a the latent defect is easier in that the defect is the shingle used. You mentioned "breach of warrantee" ..isn't there a breach of contract? Also for statutes of limitations calculations isn't date of discovery factored in? In construction I would think there are many ways to hide things so they won,t show up for years.

Expert:  Law Educator, Esq. replied 6 years ago.
Yes, proving fraud you have to prove they had an intent to defraud you which is a heightened burden of proof. On the breach of contract the statute runs from the date of the breach or the date it should have reasonably been discovered, so you would have to argue that point in your suit as to when it should have reasonably been discovered. When you sue you would include all of the causes of action, breach of contract, breach of warranty, construction defect as a latent defect. You would also include the manufacturer in your suit as a party under product liability. The law allows you to use the shotgun approach or the alternative theories to recover, so you mention all of your theories to increase your chances of one of the theories sticking.
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