Homeowner's Abilty to Recover Construction Damages
Tennessee High Court hears Botched Home Repair Case
September 3, 2011
The Tennessee Supreme Court is considering a case that could change a homeowner's ability to recover damages when a subcontractor botches a home repair or remodeling job.
The case involves a Hamilton County couple whose house was destroyed by a fire while someone was fixing their roof.
The Tennessee Supreme Court heard oral arguments in the case Thursday.
Robert and Joanie Emerson hired a company to repair their roof but, unbeknownst to them, the firm subcontracted the job out to someone else. The Emersons accuse the subcontractor of setting the house on fire while using a propane torch during the repairs.
The damage amounted to more than $800,000.
Because repair and construction work is often subcontracted out to cheap laborers who lack insurance, some legal experts say a decision in favor of the general contractor could leave many homeowners saddled with the costs for botched repair jobs.
"Ultimately the buck stops with the general contractor, and that has always been the rule," said Nashville attorney Jean Harrison, who is an expert in construction law.
Harrison, who is not involved in the case, said almost all construction and home repair work is subcontracted.
The Emersons' insurance company sued Martin Winters, the owner of the Winters Roofing Co., to recover the costs of the fire damage. A Hamilton County trial court dismissed the case against him, saying he should not be held responsible for what the subcontractor did.
Circuit Court Judge W. Neil Thomas III ruled that the couple's insurance company couldn't recover damages because the fire wasn't a foreseeable part of the contract. He also said that the only way Winters could be held responsible was if it was shown that he was negligent in his hiring or supervision of the subcontractor.
Winters was not supervising the work when the fire started.
Last year the Tennessee Court of Appeals overturned the Hamilton County court's decision, saying the general contractor had a "duty to see that the work he was contractually obligated to perform was done in a careful, skillful and workmanlike manner."
An attorney who represents Winters says his client should not be held responsible.
"The precedent in the state of Tennessee is generally the contractor is not liable," Chattanooga attorney John T. Rice said.
Rice said neither the contractor nor the subcontractor had insurance. Court documents show the Emersons believed Winters had insurance because that's what he advertised on his web site. He let his insurance lapse.
The couple, Rice said, entered into a verbal contract with Winters to repair the roof.
An attorney representing the Emersons' insurance company did not return a call from The Associated Press seeking comment.
If the court finds in favor of the owner of the roofing company, homeowners are going to have to be more vigilant, Nashville attorney John Day said.
"It means the homeowner is going to have to quiz the general contractor," he said. "Now are you going to do this yourself?
"You're going to have to be much more diligent because you don't know who's actually doing the work."
Homeowners already have to be diligent, Rice said.
"Consumers have a duty to themselves to make sure they do their due diligence," he said. "You can't just blindly go out and get into a contract without doing your due diligence."
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