Last time, we looked at the facts of a case which we had to strongly convince a dealer to settle (FCNews, Dec. 12/19). It involved a lawsuit brought by a customer seeking money damages from the retailer. The suit was based on the plaintiff’s allegations that the carpet delivered was defective, the installation was improperly and negligently performed and the installers had, during the course of the installation, damaged the walls, floors and a piece of furniture.

This lawsuit, although instituted in 2002, did not come up for trial until fairly recently. The case was finally called, however, when, after informing us of his congested calender, the judge transferred it to another court. A month later, in front of a new judge at another court, the judge looked at the case history then told us his court was even more congested and immediately sent it back. It took another month before it was called again and it was at that time we finally settled.

Some of you might be asking, why settle and pay money now when it might not come up for trial for a long, long time? Because every time the case appears on the court calendar for trial I have to spend at least a few hours there even though the end result is merely an adjournment. Naturally, I have to bill the client something for this time and after 10 or so appearances this billing could easily exceed the value of the case.

However, my client did not want to voluntarily give this customer anything. The stair steps, it was more or less agreed, had been repaired to the customer’s satisfaction. Even if there had been minor kicker damage incurred during the installation, the dealer felt his men could have easily repaired it, if they had been allowed to.

Additionally, although the written complaint claimed the carpet installed in both upstairs rooms was damaged, apparently, in the view of the impartial inspector who was sent in a previous attempt at settlement, the damage was confined to only one room—half of the upstairs carpet. The dealer was also upset with the fact that although product had now been down almost four years, in spite of the plaintiff’s allegations of how terrible it was, she had not replaced it. Instead, she allowed it to remain on the floor and lived with it. How bad could it really be?

The final claim that really upset my client was the alleged damage done to the home. Why, he wanted to know if this allegation was true, wasn’t it noted at the finish of the installation? Instead of complaining at that time, the customer paid for the job and signed the order that everything was satisfactory. Wasn’t this proof that the damage was not caused by his men?

Probably yes, but there are no guarantees in a trial. Although the dealer’s records indicated that the complaints involved only one room or a little over half of the carpet, the plaintiff’s lawyer was ready with pictures and an expert witness to show that the damage was apparent throughout the entire upstairs. Even if we could limit it to one room, the photographs I saw, along with the expert’s testimony that both the primary and secondary backing had been torn by a kicker in various areas, were, I believed, simply too much to overcome.

Based on the above I now listed the following considerations for my client: 1. The continuing legal fees; 2. Although I felt we should win the $600 claim covering the steps I couldn’t guarantee it; 3. Although I again felt we should win the $2,000 claim for damage to the home there was a real possibility we wouldn’t; 4. We might not be able to limit the upstairs claim to only $1,400 worth of carpet instead of $2,400, and 5. Even if we limited all the proof to the one $1,400 room, the pictures were going to really hurt our case.

Although the plaintiffs had originally demanded the sum of $3,000 for settlement, after much negotiation with their attorney I had gotten them to agree to accept $1,200. I felt my client could not afford not to pay this. How do the rest of you feel? I’d appreciate your written comments addressed to me in care of Floor Covering News and will print some at a later date.