Member contacted our office for assistance after being served with a lawsuit stemming from an unpaid student loan. Member was experiencing extreme financial hardship, and in an attempt to expeditiously resolve the matter, we offered to reach out to opposing counsel with a settlement offer. We wrote a letter explaining that Member had become permanently disabled and his only source of income is from Social Security Disability and provided opposing counsel with supporting documentation. In response to our letter and the additional information provided, the National Collegiate Student Loan Trust dismissed the lawsuit without prejudice. Savings for Member, $44,000.00.
Member was a sub-contractor with a technology company through an independent contractor. The technology company terminated their relationship with the independent contractor and disputed Member’s two remaining invoices, as well as the expense report for an out-of-state trip in support of the project, claiming that the approvals were done by an unauthorized employee. We wrote a letter to the company refuting its claims and demanded that the unpaid compensation be paid within thirty days. In response to our letter, the opposing party remitted payment in full. Recovery for Member, $26,670.00.
Member contacted our office for assistance after an expensive mattress he purchased began to sag. At the time of the purchase, the mattress store offered a warranty on the mattress. Member had contacted the store and requested someone come out to inspect the mattress so that he could get approval to have his mattress replaced. The mattress store declined to send anyone out, and Member attempted to get the defective mattress replaced under the manufacturer’s warranty. The member received a letter stating the warranty was void because an improper frame/inadequate support system was used. We wrote a letter informing the opposing party that the store’s employees delivered and set up the new mattress, and demanded that the mattress be replaced. In response to our letter, the manufacturer reversed its decision and agreed to replace the mattress set. Savings for Member, $2,600.00.
How to Protect Your Case Against a Contractor Under Georgia’s Right to Repair Act
Many homeowners hire a builder or general contractor with dreams of renovating their home to add that dream kitchen or picturesque gazebo. Unfortunately, these dreams can be quickly dashed when the work is completed incorrectly, or not at all. Many homeowners are so enraged by the broken promises or poor craftsmanship that they run to court to file a lawsuit, but unless you follow the steps outlined by Georgia law, you will not be entitled to the relief that you seek.
The law that you as a homeowner need to be aware of is Georgia’s Right to Repair Act (O.C.G.A. Section 8-2-35 et seq.). This series of statutes detail the process that a homeowner must follow when deciding to file a suit against a contractor. To start, you must serve written notice to the last known address of each responsible contractor at least 90 days before initiating a lawsuit. This means sending your notice by certified mail or overnight delivery with a return receipt requested. If during this time, the statute of limitations is due to expire, you may go ahead and file the lawsuit, but it is still necessary to complete the notice process. This notice requirement does not apply in a situation where defective construction resulted in personal injury or death.
The notice must state that you, as the homeowner, are making a claim due to one or more construction defects, and that the purpose of providing the notice is to meet the statutory requirements. It must also specify both the type and the results of any defects you are claiming. You must provide the contractor with any expert reports you have that describe the nature and cause of the defect(s), including inspections, photographs or videos. If you discover additional defects after serving notice, you must begin a separate notice process for those defects.
The contractor has 30 days to reply in writing and choose whether to inspect the house or settle without inspection. The contractor may inform you that he or she intends to settle the claim by means of a monetary payment, repairs, or a combination of both, without inspection. Alternatively, the contractor has the right to inspect the defects and determine the need for any repairs. If no repair is considered necessary, the contractor may serve you with a written statement explaining his or her reasons for refusing to fix the defect.
If the contractor proposes an inspection of your home, you must provide access within 30 days. If the contractor decides to fix the defect, he or she must serve you within 14 days of completion of the inspection with a written offer to fix the defect fully or partially at no cost to you, settle by issuing you monetary payment, or settle with a combination of the two.
If you decide to accept the contractor’s offer, you must serve the contractor with your written acceptance within 30 days of the offer. If you do not respond to the offer, it is deemed that you have legally accepted it, and you must provide the contractor prompt access to your home to make the necessary repairs.
You may reject the contractor’s counteroffer. You would need to serve the contractor with a written notice of rejection that explains your reasons in detail. If the contractor is represented by an attorney, you must also serve this written notice on the attorney. The contractor may, within 15 days of your rejection, make a supplemental offer to fix or pay for the defect, which you then have the option of rejecting as well. If you later file a lawsuit, however, the court may take into consideration any reasonable offers that the contractor has made previously. If it is determined that you rejected a reasonable offer, any legal remedy to you may be limited, and you cannot recover any attorney’s fees you incurred after the rejection.
If you reject a settlement offer, or the contractor has either refused to fix the defect(s) or failed to respond to you within 30 days, you may then file a lawsuit. You may also sue if the contractor agrees to make monetary payment or to fix the defect and then fails to do so.
What if a repair is inadequate or the problem resurfaces? The statute is silent on these questions, but it does state that, once a contractor fixes the defect identified in the initial notice of claim in fulfillment of the terms of his/her offer to do so, you may not file a lawsuit based on the same defect. If the repair did not fulfill the terms of the offer, it appears that you may not be barred from filing a lawsuit or starting the notice process over again.
While these procedures may seem lengthy and complicated, failure to follow the procedures laid out in the law will affect your ultimate ability to pursue your claim. It could be well worth your time to speak with legal counsel in our office about any potential claim(s) you may have against a contractor.
As always, if you need an attorney to assist you with any legal matter, please call our firm to open a file and schedule a consultation.
Upcoming Will Workshop Webinar Dates
Wednesday, December 4, 2019, at 12:00 p.m.
During these web-based presentations, Attorney Kolbi Cumbo will discuss the importance of estate planning, as well as various options and key terminology related to Wills and estate planning. Kolbi will also help guide attendees through completing their Will Questionnaire. Remember that having your Will professionally prepared is a free benefit for all primary members, and depending on your legal plan, it may be free for your spouse, as well. Please take advantage of this important benefit. Please also be on the lookout for invitations to the upcoming webinars.
2019 Firm Holiday Closings
Thanksgiving- November 28 & 29 (Thursday & Friday)
Christmas- December 24 & 25 (Tuesday & Wednesday)