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For those interested in the legalities of the Contingency Contracts and "Acting" in a manner that could be perceived as an Adjuster in the Stae Of Illinois, this recent case will prove interesting.
I wonder if the attorneys for these companies are working overtime to rewrite their contingency contract language?
Ed
July 2009 - Judges Ruling on Breach of Contract Complaint Xteriors Inc. vs. Jerry Lambert
Below is the judgement filed by The Honorable Judge Caldwell in a Breach of Contract Suit filed by Xteriors Inc. againt Jerry Lambert. The Judge in this case found the contract offered Jerry Lambert by Xteriors failed on several grounds. See below the Excerpt of the judges findings......................
STATE OF ILLINOIS IN THE COUNTY OF McHENRY
IN THE TWENTY-SECOND JUDICIAL CIRCUIT
McHENRY COUNTY, ILLINOIS
_________________________________________________________________________________
Xteriors Inc, Plaintiff vs. Jerry Lambert, Defendant
Case Number; 09 SC 4169
April 30, 2009
ELECTRONIC RECORDING
EXCERPT OF REPORT OF PROCEEDINGS at the hearing of the above-entitled cause, before the Honorable MICHAEL CALDWELL, Judge of said Court, on the 30th day of April, 2009. Diana Foster
---BEGINNING OF EXCERPT---
THE COURT: The Plaintiff's claim in this case has to fail on several -- several grounds.
Number one, it clearly in this Court's judgment violates the Home Repair Act, and it very clearly especially in paragraph four of Plaintiff's Exhibit Number 1 violates the Public Insurance Adjusted and Registered Firms Act. Adjusting insurance claims according to the statute means representing an insured with an insurer for compensation and while representing the insured either negotiating values, damages, or depreciation or applying the loss circumstances to the insurance policy provision.
Section 512.53 thereafter requires any person engaging in the business of adjusting insurance claims or holding himself out as a public insurance adjuster -- I stress the "or" because that clearly shows that the statute is drafted in the disjunctive – and this paragraph clearly appoints Xteriors Home Remodeling as an insurance adjuster for this purpose.
On that basis and that basis alone, there should be a judgment for the Defendant.
Going further, in the Home Repair Act because there is no dollar amount here-- This is a pig in a poke. If somebody gets an estimate, the estimate has to contain -- an offer of repair must contain an estimate of repair. Doing this without anything else is simply requiring the Defendant in this case to pay money for what is in effect the securing of estimates and negotiating with an insurance company.
The contract clearly violates the Home Repair Fraud Act. In addition, when we get to the contract provisions, Mr. Lambert has a three-day period within which under statute he's allowed to void the contract, but thereafter all of the -- all of the contract provisions with respect to cancellation or termination of the contract lie with the contractor.
We're at a period of time or a point of time in this case where there was an impasse between the interests of the owner and the insurance company. The insurance company was only going to authorize $21,000 in repair and the estimate came in at $30,000 from Xteriors. Now, Xteriors has the opportunity -- the option to cancel the contract at that point if there's no agreement. Why not Mr. Lambert? Why can't Lambert declare these negotiations between the insurance company and the contractor at an impasse and end the contract? (Indiscernible.)
In addition, its again, the option of the contractor at the point where the contract doesn't contain a ten percent -- the ten percent override for overhead and profit, again, it's the contractor and only the contractor's option to cancel the contract.
If there are provisions with respect to cancellation of the contract at some point after execution and before final performance on one side, the rule of (indiscernible) would require equal opportunity on the part of the homeowner to transfer them or cancel them on the other side.
If all he did was negotiate with the insurance company, he definitely -- Mr. -- Excuse me -- Xteriors Corporation has not performed its contract. I don't think it's capable of being performed number one; and number two, I believe it violates public policy.
For all of these reasons there will be a judgment for the Plaintiff-- excuse me – for the defendant in the plaintiff’s complaint.
I'm going to have to dismiss the counterclaim, though. I don't have equitable powers and it I still sitting in small claims courtroom. The only thing I can do is make a determination with respect to money damages. I cannot make any findings with respect to the mechanic's lien claim. I cannot order removal of the lien. I don't have injunctive powers at this particular point. That, however, is a matter for another day unless you can get a release from the Plaintiff.
Prepare an order, please.
--- End of excerpt ---
Posted by BuckStopsHere at 4:39 PM
Labels: hail damage, HailChaserChaser, illinois roofing, Precision Roofing and Restoration, Roofing, Siding, Siding Contractor, Steve Tatgenhorst, Steven H. Tatgenhorst, Xteriors Inc.Roofing contractor
1 comments:
BuckStopsHere said... The lesson here is to have any contract reviewed by a competent attorney. It is always better to spend a couple hundred dollars to an attorney to review the document, than have to pay thousands to the attorney later to defend your rights.
Second point, make sure you obtain copies of your contractors insurance and workman’s comp information before they start work.
Third, before final payment is made for work done. Obtain a waiver of lien signed by your contractor and any sub contractors he/she may have hired to do your work. Without the waiver of lien, the person doing the work on your home can than place a lien on your home for the value of the work and supplies. You will never know it has been done without checking the Clerk’s office. Or until you go to sell your home. The lien will more than likely have to be settled before you can sell your home.
For those of you living in McHenry County Illinois. Here is the link to the McHenry County check and see if you have a lien on your home. http://68.21.116.68/freewebsearch/default.aspx , Type your last name in and click on Search. The listing is for all land records recorded with the county. Double click if you see your name and the information will be shown. In the case of Xteriors Inc. This is what you will see.
McHenry, IL
Land Records Search
Search Criteria: Party Name = XTERIORS
6 Records Found
Recorded Date Document Name Last Name First Name Party Type Document Type
06/11/2009 2009R0029711 XTERIORS INC PARTY FILING REL OF LIEN
10/22/2008 2008R0054733 XTERIORS INC PARTY FILING REL OF LIEN
09/11/2008 2008R0048424 XTERIORS INC PARTY FILING MECH LIEN
09/11/2008 2008R0048423 XTERIORS INC PARTY FILING MECH LIEN
09/11/2008 2008R0048422 XTERIORS INC PARTY FILING MECH LIEN
09/11/2008 2008R0048421 XTERIORS INC PARTY FILING MECH LIEN
These are public records. Open for anyone to see.
Good luck!!
July 20, 2009 8:54 AM
I wonder if the attorneys for these companies are working overtime to rewrite their contingency contract language?
Ed
July 2009 - Judges Ruling on Breach of Contract Complaint Xteriors Inc. vs. Jerry Lambert
Below is the judgement filed by The Honorable Judge Caldwell in a Breach of Contract Suit filed by Xteriors Inc. againt Jerry Lambert. The Judge in this case found the contract offered Jerry Lambert by Xteriors failed on several grounds. See below the Excerpt of the judges findings......................
STATE OF ILLINOIS IN THE COUNTY OF McHENRY
IN THE TWENTY-SECOND JUDICIAL CIRCUIT
McHENRY COUNTY, ILLINOIS
_________________________________________________________________________________
Xteriors Inc, Plaintiff vs. Jerry Lambert, Defendant
Case Number; 09 SC 4169
April 30, 2009
ELECTRONIC RECORDING
EXCERPT OF REPORT OF PROCEEDINGS at the hearing of the above-entitled cause, before the Honorable MICHAEL CALDWELL, Judge of said Court, on the 30th day of April, 2009. Diana Foster
---BEGINNING OF EXCERPT---
THE COURT: The Plaintiff's claim in this case has to fail on several -- several grounds.
Number one, it clearly in this Court's judgment violates the Home Repair Act, and it very clearly especially in paragraph four of Plaintiff's Exhibit Number 1 violates the Public Insurance Adjusted and Registered Firms Act. Adjusting insurance claims according to the statute means representing an insured with an insurer for compensation and while representing the insured either negotiating values, damages, or depreciation or applying the loss circumstances to the insurance policy provision.
Section 512.53 thereafter requires any person engaging in the business of adjusting insurance claims or holding himself out as a public insurance adjuster -- I stress the "or" because that clearly shows that the statute is drafted in the disjunctive – and this paragraph clearly appoints Xteriors Home Remodeling as an insurance adjuster for this purpose.
On that basis and that basis alone, there should be a judgment for the Defendant.
Going further, in the Home Repair Act because there is no dollar amount here-- This is a pig in a poke. If somebody gets an estimate, the estimate has to contain -- an offer of repair must contain an estimate of repair. Doing this without anything else is simply requiring the Defendant in this case to pay money for what is in effect the securing of estimates and negotiating with an insurance company.
The contract clearly violates the Home Repair Fraud Act. In addition, when we get to the contract provisions, Mr. Lambert has a three-day period within which under statute he's allowed to void the contract, but thereafter all of the -- all of the contract provisions with respect to cancellation or termination of the contract lie with the contractor.
We're at a period of time or a point of time in this case where there was an impasse between the interests of the owner and the insurance company. The insurance company was only going to authorize $21,000 in repair and the estimate came in at $30,000 from Xteriors. Now, Xteriors has the opportunity -- the option to cancel the contract at that point if there's no agreement. Why not Mr. Lambert? Why can't Lambert declare these negotiations between the insurance company and the contractor at an impasse and end the contract? (Indiscernible.)
In addition, its again, the option of the contractor at the point where the contract doesn't contain a ten percent -- the ten percent override for overhead and profit, again, it's the contractor and only the contractor's option to cancel the contract.
If there are provisions with respect to cancellation of the contract at some point after execution and before final performance on one side, the rule of (indiscernible) would require equal opportunity on the part of the homeowner to transfer them or cancel them on the other side.
If all he did was negotiate with the insurance company, he definitely -- Mr. -- Excuse me -- Xteriors Corporation has not performed its contract. I don't think it's capable of being performed number one; and number two, I believe it violates public policy.
For all of these reasons there will be a judgment for the Plaintiff-- excuse me – for the defendant in the plaintiff’s complaint.
I'm going to have to dismiss the counterclaim, though. I don't have equitable powers and it I still sitting in small claims courtroom. The only thing I can do is make a determination with respect to money damages. I cannot make any findings with respect to the mechanic's lien claim. I cannot order removal of the lien. I don't have injunctive powers at this particular point. That, however, is a matter for another day unless you can get a release from the Plaintiff.
Prepare an order, please.
--- End of excerpt ---
Posted by BuckStopsHere at 4:39 PM


Labels: hail damage, HailChaserChaser, illinois roofing, Precision Roofing and Restoration, Roofing, Siding, Siding Contractor, Steve Tatgenhorst, Steven H. Tatgenhorst, Xteriors Inc.Roofing contractor
1 comments:
BuckStopsHere said... The lesson here is to have any contract reviewed by a competent attorney. It is always better to spend a couple hundred dollars to an attorney to review the document, than have to pay thousands to the attorney later to defend your rights.
Second point, make sure you obtain copies of your contractors insurance and workman’s comp information before they start work.
Third, before final payment is made for work done. Obtain a waiver of lien signed by your contractor and any sub contractors he/she may have hired to do your work. Without the waiver of lien, the person doing the work on your home can than place a lien on your home for the value of the work and supplies. You will never know it has been done without checking the Clerk’s office. Or until you go to sell your home. The lien will more than likely have to be settled before you can sell your home.
For those of you living in McHenry County Illinois. Here is the link to the McHenry County check and see if you have a lien on your home. http://68.21.116.68/freewebsearch/default.aspx , Type your last name in and click on Search. The listing is for all land records recorded with the county. Double click if you see your name and the information will be shown. In the case of Xteriors Inc. This is what you will see.
McHenry, IL
Land Records Search
Search Criteria: Party Name = XTERIORS
6 Records Found
Recorded Date Document Name Last Name First Name Party Type Document Type
06/11/2009 2009R0029711 XTERIORS INC PARTY FILING REL OF LIEN
10/22/2008 2008R0054733 XTERIORS INC PARTY FILING REL OF LIEN
09/11/2008 2008R0048424 XTERIORS INC PARTY FILING MECH LIEN
09/11/2008 2008R0048423 XTERIORS INC PARTY FILING MECH LIEN
09/11/2008 2008R0048422 XTERIORS INC PARTY FILING MECH LIEN
09/11/2008 2008R0048421 XTERIORS INC PARTY FILING MECH LIEN
These are public records. Open for anyone to see.
Good luck!!
July 20, 2009 8:54 AM