Re: legal matters and right to inspect

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: : : Char- : Many manufacturer's use various names for the exact same product for marketing purposes. Unless the product is sold to the retailer as "second quality" "as-is" or "slightly irregular" it is typically first quality goods. The fact that a manufacturer offers to different names for the exact same product is not considered fraud or even deception for that matter. While some manufacturers like to increase sales by merely offering a temporary price discount, others will change the name and offer a lower price with a more limited warranty to justify and even greater discount than if one were to merely lower the price on the same product. When a manufacturer, retailer or wholesaler prices a product they take into account both soft and hard costs. An example of soft costs would be warranty service on future claims, re-tooling to keep up with new design trends and so on. This is one reason I believe that cars are so costly to purchase these days because consumers are demanding better warranty coverage, design changes and service (the 12,000 mile 12 month warranty just doesn't work to sell cars anymore). : So what I am trying to say is that just because a product has a lesser warranty does not necessarily mean the product is poor quality or inferior. : : Take care, Evan : : : Evan, : : Thank you for your detailed reply. : : The primary defects are shiny lines that look like dried glue running across the grain. All boards are not affected. The lines are various lengths and widths. A couple of boards have dents in them, one has a chip. : : The Shaw rep said "We will take care of this." "We will provide the material to our dealer and pay for the labor." I didn't misunderstand him. He was here for two hours asking what we paid for installation, talking about what dealer whould be utilized, etc. He stated routing out all these boards with the manufacturing defect would be very expensive. It would be preferable for Shaw to replace the floor. : : My installer won't install any more Shaw flooring. I contacted him the day the rep left from Shaw when they said they were going to pay for labor. : : The defects have also been substantiated by my State Farm agent. : : This floor is called a Promo and had only 5 year guarantee (since upgraded to 15 years) That raised a red flag for me. Prior to its installation I contacted Shaw and spoke to dozens of people. The head of the Hard Surface division assured me this floor was the same or better quality as the Professional Pergo I already have in kitchen and diningroom. Promo is Decades, or so they say. So why call it Promo if it's the same inherent quality in composition and maufacturing as Decades. : : Thank You : : : Char : : : : : As others have expressed we are not attorney's so we cannot offer you any legal advice, and even if we were the legal advice should come from attorneys who are in California and most likely ones who specialize in construction or warranty litigation cases. : : : The rights of sellers is primarily protected under the Uniform Commercial Code (federal laws) rather than state or local laws. To my knowledge most Judges use the UCC to make rulings in such cases. A seller has to right to repair/correct a defect, which would include to my knowledge the right to inspect the goods in order to determine if the product is in fact defective. If I remember the code (its been a while since I have read it) the consumer has to give the seller reasonable access to the product in order to conduct the inspection or repair. Does a one time visit constitute reasonable access? That we cannot answer and quite possibly only the Judge in the case will have the answer to that. But realize that when you go to court the Judge may ask why you didn't allow a second visit this time by an independent inspector who the seller commissioned. The seller has a right to provide for a proper defense and providing expert witness testimony from an independent unbiased inspector gives the seller that opportunity in my estimation, although they can certainly have thier sales rep. offer testimony. : : : Since you have not indicated specifically within your post as to what defect the floor has, it is difficult for us to assess if an actual manufacturing defect exists or just an inherent product design limitation which is not generally considered a "manufacturing defect". But given the statement that the installer installed "defective boards" I can only assume that the defect is limited to only a section of the floor in question. : : : One right that a seller (in this case the manufacturer) has is to require that the buyer (whether that be the retailer who purchased the goods in your behalf or in the case of cash and carry the consumer)inspect the goods themselves before acceptance. Installers who install materials with "visible" defects (asuming they were visible at the time of installation, as you have not mentioned whether they were or weren't in your posting) have basically accepted the defects under the UCC. It is not unusual for a manufacturer to agree to replace material (but not labor) in cases where defective goods have been installed. Quite frankly it is possible you may have misunderstood the intentions of the manufacturer representative when he offered to "replace the floor", as replacing a floor can be simply mean replacing the flooring materials without any labor provided (assuming that the installer would accept the settlement and provide the replacement labor at no charge). : : : While I can appreciate your hesitation in trustng the manufacturer at this point, fact is no matter how much you spend on anything you purchase, defects do occur occassionally and are missed by the line inspectors at the plants. Installers whether they like it or not are the last inspector of the flooring material before it goes down and in accordance with federal law can be held accountable for installing materials with visible defects. Personally I find it amazing that the installers are refusing to provide the labor to replace the floor as you have asserted (assuming that the installers are in agreement that a material defect is visible), as the manufacturer could have simply walked away from the job without even offering to replace the entire floor (just the defective boards themselves). Replacing all of the planks (the non-defective ones) is considered a customer accomodation not warranty coverage. : : : To me this case does not involve an issue of whether or not the floor has visible defects but rather who has liability. Based on your statements it sounds to me that the Judge could very well find multiple parties at fault and not just one. : : : Good Luck, Evan : : : : : After weeks of phone calls to Shaw's headquarters and lots of excuses they finally send a rep to view the damage. Shaw says if this guy says it's manufacturing they will replace the floor, period. I ask if I have to talk to anybody else, Shaw says no. This guy has the final say. I question who his supervisor is whn I call the service center in Cypress. They say in California he is it. : : : : : This Rich Giguerre from Shaw who is in charge of the entire Western Region comes and 2 hours later states our floor has manufacturing defects and they- "Shaw" are going to pay for the materials and labor to replace it. My husband is here and he shakes on this and says we have a deal. Great. : : : : : Next day this individual calls back and says that the "The Mill" says our installer should not have installed defective boards and they aren't going to pay for the labor. What happened to the verbal contract from the day before? All of a sudden Rich is "just a salesman" Never mind his business card says Hard Service Specialist. : : : : : I have now filed in small claims court in California against Shaw, I cannot sue someone out of state in small claims but Shaw has a presence here with a service center in Cypress California and I am naming the guy who came over as their Agent For Service. : : : : : After ignoring me for a week 3 hours after this guy is served court papers we are contacted by an "independent" inspector to look at our floor on Shaw's behalf. I have hired my own certified inspector. : : : : : Do I have to allow Shaw back in my house after they made an agreement and backed out and misrepresented themselves? : : : : : I don't want their floor I have lost all confidence in the product I just want money to replace it. I have 2 other rooms with commercial Pergo that I've had for over 2 years problem free. : : : : : Any thoughts on strategy? : : : : : Thank You : : : : : Char In California : : : : I'm surprised they changed their mind after the verbal agreement. I would be talking to an attorney about this if I were in your shoes.

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