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socrateaser
socrateaser, Lawyer
Category: Consumer Protection Law
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Experience:  Retired (mostly)
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I had Sears install new windows and sliding glass doors at

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I had Sears install new windows and sliding glass doors at my home. The sales associate promised 100% satisfaction on the work preformed. If I was not satisfied 100%, then they would only charge me around $4,175.62 instead of the amount of about $13,918.75. As the install was complete I had concerns as the screen doors didn't close flush and had caps at the bottom. They also scratched 2 windows while installing which I asked them to correct. The install was completed on or around 4/17/13. They have not corrected either of the issues and are responding by email stating that in the contract it states "no verbal agreements unless in writing are binding to this contract”. I don't have anything in writing from the sales associate except their business card stating 100% satisfaction guarantee. I refused to sign the the completion certification as the doors would not close properly. How can I get this resolved as all they want to do is discount the total amount by $2,227.75 and not correct the issues with the doors or windows. They did offer to take out the windows and walk away but I am responisble to pay for the installation. I do not think that is fair as the product was never installed correctly. Any help would be great. Thanks. Jason
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  socrateaser replied 1 year ago.
Hello,

Under well-established principles of contract law, you are entitled to be made whole for any defect in workmanship associated with the labor or materials. Your damages are the difference in cost of the finished product that you received, and the finished protect that you contracted for.

Doors that don't close flush, can be removed and reinstalled. The cost of that R&R is your measure of damages. A scratched window can be replaced. That cost is also your measure of damages. The combined damages are what you are entitled to as a discount to the original installation cost.

You can either bargain for what I've just described, which is what a court would order, and then pay for the repairs yourself (or, accept the poor quality workmanship and save the money) -- or, you can have someone else complete the job, pay for it and deduct those costs from what you owe Sears. This latter method is called "mitigation of damages."

What you cannot do is simply refuse to pay the entire bill. That would be an act of bad faith, and a court won't allow that outcome

The 100% satisfaction guarantee on the business card, is interesting. That's called a deceptive business practice, and it's prohibited by Cal. Civil Code 1770(a)(9) ("false advertising"). You can sue for actual damages (your measure of damages described above), plus punitive damages for the false advertising. This could scare the cr** out of Sears, because it completely changes your bargaining position.

Frankly, I think you need to contact a local civil litigation attorney and see if you can get someone to take the case on contingency. I'd try at least 3-4 different law firms, because different lawyers have different risk profiles. Regardless, whenever a case has a possibility of punitive damages, it's usually interesting to some lawyer, because that's where the big money is found.

In addition to the above you could file a complaint with the California Contractors State Licensing Board (CSLB). I wouldn't do this before I shopped the case around to see if a lawyer is interested. But, based upon what you've described, the CSLB is likely to take the case and while you wouldn't get damages directly, Sears would probably have to make the repairs, regardless of the cost or have its contractors license suspended.

Those are the options. Please let me know if my answer is helpful. And, thanks for using justanswer.com.
socrateaser, Lawyer
Satisfied Customers: 34462
Experience: Retired (mostly)
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