Are you “Waivering”?

When you arrive on a job site and see issues that may affect the performance of your installed product, what do you do? Do you walk away or do you work around the issues because you know that this is just how things are done in the construction trade? You can always have the general contractor or end user sign a release waiver, right?

Well, if you have ever been involved in litigation, you may find that a release waiver may not always work in your favor. Knowing that there were issues that may affect the performance of the flooring and having the end user sign a release waiver stating you are not going to be liable for any future problems are hard to sell to a judge who asks questions such as: “If you knew that there would be problems or issues why did you install the job”? “Are you not the professional”? “Should you not have known better”? Remember, the judge goes by the letter of the law and wants only the facts and chances are you will be going up against a shrewd lawyer trying to win the case. Even though the issues or concerns were present prior to your installation of the floor covering and even though you may not be able to control or correct the issues, once you accept the substrate and site conditions, you may be held accountable for a failure in the future.

At SURFACES | StonExpo/Marmomacc Americas this year, I spoke about documentation of site conditions and I will once again reinforce the importance of such documentation. If there are conditions that are not acceptable for the installation, we need to create a legal document that will stand up in a court of law. So how do we do this, now that we’ve discussed the shortcomings of a release waiver? Fortunate for me, I have a very good friend who is also a lawyer, so I asked him if there was any type of legal document that would protect my company from possible litigation when we are asked to proceed with an installation that does not meet industry or manufacturer requirements, knowing that the installation has to proceed. He drew up a letter of Notice, Protest, and Assumption of risk for me.  The letter contains many important parts, including:

1. Notification that problems exist that will most likely jeopardize the performance of the products and installation
2. A detailed description of the problem(s)
3. The name and company affiliation of the individual(s) notified of the problem(s)
4. The name and company affiliation of the individual who authorized the installation

Click here to view the document.

Keep in mind that no matter how strong the wording of a document, you can always be taken to court, but this type of document may help support your case. This document has worked for our company, but it is always recommended that you seek legal advice for documents regarding your own company.

I will discuss this issue in even greater detail during my session at SURFACES ¦ StonExpo/Marmomacc Americas on Proper Substrate Preparation for Hardwood, Bamboo & Laminate on Tuesday, January 24, 2012. I look forward to seeing your there.

We’d like to hear from you. What do you do when encountered with conditions that are not acceptable for an installation? Have you used a document similar to the Notice, Protest, and Assumption of Risk?  If so, has it worked for you?  Share your comments here.