So we had to go to court on Friday as defendants. One of the subcontractors we hired to do waterproofing on our construction project was suing us for $2K over the original estimate. I have already paid the estimated amount in full (2 years ago!) but when he had sent the final invoice he had added $880 in extra materials with no explanation. When I asked for an accounting he said it was partly because he had estimated for only 91 feet of perimeter and the actual was closer to 105 feet (when I measured the plans myself and added up based on his drawing on the estimate, I got 103 and 102 feet respectively). The other part was for an extra step that we added to the process that required some extra material. I agreed to pay him for the extra step I requested but not for his mistaken estimate of the job since he had not informed me of that until 2 months after the job was complete. No "change orders" were ever completed. When I told him what I was willing to pay, he started threatening me about how he was going to increase the estimate even more by adding in additional labor that was required because of the bad weather conditions. I stopped conversing with him (that was 2 years ago).
So in court Friday, we both handed the judge the original contract and the judge asks the subcontractor for his change orders which of course he didn't have. And his excuse was, "Well, it was impossible to complete a change order because we were 'in the field' working." Huh? I was there for part if not most of each day he worked on our project and he couldn't take 5 minutes to do a change order?!
I think we stand a good chance of the judge finding in our favor, but has anyone had an experience like this with a contractor? I am really nervous because we can't afford to pay him $2K if we lose.
Update: The judge found that the contractor had not met his burden of proof because he had no change orders. The judgement is for us to just pay the $400 that I agreed was the additional owed and that I had offered to pay originally (but that the contractor had refused to take). I am very happy with the outcome.
Just to clarify: the estimate I mention was the actual contract for the work. His drawing showed the correct dimensions of the project but did not list how much material he had calculated (it had no breakdown of labor or materials). In the field, he explained to me at one point that the actual dimensions were a little different than he expected. I asked if there were options and he told me that if he didn't bring the material up as high as originally planned, that then he would still be on estimate for materials. I approved that change for the precise reason that we did not want this part of the job to run over. Please note that I did offer to pay for the additional work that I ordered. However, he refused to discuss it and started threatening me with even bigger charges. I have no idea why he waited 2 years to take us to court. We had no communication in the 2 years between when he sent the threatening email and when we received the court summons.
I work in automotive repair so I understand estimates; it is what I do for a living. If I estimate a car repair job and then we discover that the actual bill is going to be bigger because of stuck parts or additional parts being needed that we could not have anticipated, I am obligated by law to immediately update the customer. If I miscalculate the labor on my estimate or if I use the wrong part price in the estimate, I "eat" that difference because my customers depend on me for precise estimates. I would never run over on a bill the way this guy did! Even if someone's car "needs" additional work or materials, I do not have the right to make that decision without updating them and getting approval.
An estimate is just that. Sometimes could come in over the estimate or sometimes under. In the end, I think you owe him the money. Pay up and be done with it.
If you lose it will be because you got 2,000 dollars worth of work and materials that you did not pay for. You are trying to get off on a technicality and I don't think that is right. I mean would you have preferred he leave the extra 10 ft not water proofed?
That is pretty much what you are saying, had you known, had he come to you with a change order, you would have told him not to water proof 10 ft of your basement. I am not sure the court is going to see it your way.
Just because you can't afford it doesn't justify stiffing him. How would you like it if your husband's boss didn't pay him for a week saying I can't afford it?
K., I am a general contractor, and handle all the contracts, estimates, change orders and billings for my company. We are in California, and I'm not familiar with Minnesota laws, so my answer reflects California laws. If he failed to properly estimate the materials needed, that is not your problem, as long as the contract doesn't read "supply and install 91 linear feet of waterproofing only," and then specifically exclude any additional work. Now, even if it does read like that, if he failed to get a written change order before the additional work was completed, he still shouldn't win the case. If you asked him to do additional work, you could be liable for that work, but again, without a written change order, he is still on really shaky ground with that. I don't know how Minnesota law deals with verbal agreements - here in CA, they don't stand up in court.
His "defense" that he couldn't fill out a change order because he was in the field is irrelevant. The law (here, anyway) is very clear about this - any extra billing needs to be approved in writing, or the original contract amount stands. We NEVER do extra work without first having it approved in writing for this exact reason. The client is not obligated to pay for it if we don't get their approval.
From what you've written here, I think you have every expectation of winning the case.
Why it's taken him so long is beyond me, but an estimate is just that. It's an educated guess on what a project cost, and sometimes there are variables.
If you take your car in and they estimate the cost, do not most people assume it's going to be a little bit more because of the 'unknown'?
While I understand where you are coming from, the truth is...you owe him.
i don't think you stand a chance. i think you have to pay, morally and legally. you may end up covering his court costs (legal fees if he has any), so better just pay.
We own our own company, not in construction, but from a business standpoint.... I think you will lose.
Why you ask? Because he gave you an estimate which is just that "estimate" which means the final dollar amount could come in higher or lower. Like someone else mentioned... when you take your car in to the dealer for repair, they give you a ballpark "estimate" dollar amount. When you pay, you pay the charges and hope they were in the right ballpark with the numbers.
YOU opted for some changes but there was no change order.... his bad for not getting the order in place.
However, you are trying to get out of paying the true amount of the bill and you are sticking him with the overage to come out of his pocket.
I do not understand why he has waited 2 years to pursue.. maybe we don't have the full story.
If I were in the jury... (and I have been on a jury before) I would lean toward the contractor being paid for the FULL job he did. Plus... if you lose, you may very well be liable for HIS legal fees as well.
If you or your husband work for a company and you end up working overtime... wouldn't you expect to be paid? Turn this situation around in your head and look at it logically.
It might be time you hire a lawyer (MORE $$$). Cut your losses, pay the $2000, and keep yourself safe from a judgement or lein on your property. When/if you ever go to get a loan and there is a judgement and/or lein on your property, against you..... kiss that loan goodbye.
You are not in this to "win", you should be in this to do the right thing and keep your name clean.
Pay up.
I think a lot of people responding are getting hung up on the word "estimate" being used in the original question. Depending on the contractor, the estimate may have been a "hard" number (not to exceed), a flat fee (pay the amount, whether the actual was less or more) or a true estimate, with costs in full to be paid upon completion. If you read the entire question, it is later referred to as a "contract".
Even if it was a true estimate, some contractors will have language detailing how much & under what circumstances the customer will need to pay overages, and usually such incidents will require written documentation & sign-off by the customer (especially if they exceed the previously specified threshholds).
As for whether she owes the money or not, is a horrible person for not paying when originally presented with the increased amount, etc. Let's keep in mind that the contractor submitted an invoice for almost $1K more than she had authorized to pay, and upon such, agreed to pay for the amount that resulted in her extra work request. Sloppy of the contractor to have not put that in writing ahead of time, but the customer was willing to pay nonetheless. However, because she did not agree to pay for his own estimation mistake, he immediately began to threaten with increased fees for labor.
One of the roles of a contractor is to take into consideration all factors, & give the most accurate estimate possible. Unless you are charging "by the hour, plus all supplies & expenses", the amount put forth should encompass all expenses incurred by the contractor, plus additional in order to make a profit. A responsible contractor is not going to charge you $20/hr if he has to turn around & pay the people he hired to help him $20/hr. There would be no profit for him! So if there was extra labor due to weather, etc. that should have been built into his labor cost of the estimate.
For those of who you are immiately judging this woman based on your emotional take of her motives, shame on you! Think through the facts, & remember, a contractor is a business person. They should be respectful, knowledgeable, and honest. And if they make a mistake, they need to handle their own accounting, not slap it on the customer, who did not have any responsibility for it.
Good luck to you in your court case, K.!
He sound shady and I'm glad that you are fighting him on this. I hope the judge finds in your favor and that you are only liable for the work that you agreed to that required extra material.
I would report the contractor to the BBB.
WOW! I am going to have to disagree with some of the other posters here. I understand that there was an estimate and I also understand that there should be some wiggle room in the estimated price. He should have kept track of his costs throughout the job and let you know immediately once he figured out that the work would be going beyond the agreed upon estimate. However, to expect almost $900 2 months AFTER the work is completed seems pretty shady.
What does your contract say? That may really be the determining factor as to if you legally owe him this money or not. Even if you do owe him the money, his business practices are REALLY crappy.
If you already paid $900 over the original estimate, I don't think the judge will order you to pay $2000 more, especially 2 years after the fact. I don't know all the details, but the contractor could have mentioned at any point in the process that his measurements were wrong and it was going to be a bit more, a verbal agreement probably would have been sufficient, but instead he waited until months after the worth was completed to bring it up. Makes him look shady.
My father is a contractor and he usually pads his original estimate just to cover little things that might come up. People are much happier to pay less than the estimate!
So you haven't even paid him for the additional step that you added? How do you justify that? I know you won't like my answer but if I was the judge I would make you pay the addional $880. He gave you an ESTIMATE not an invoice. On the other hand I am not sure his justification for suing you for an additional $1020 over what he said you originally owed him. If he wins though I would expect you to pay the court fees.
This has been going on for 2 years now. The $880 bill is now 2 years old and has now grown to a $2000 issue. It is my guess that the judge will not be happy with either of you. The subcontractor for not having the "change" paperwork and you for not paying for the additional work you ordered beyond the original estimate. You probably should have tried to negotiate the $880 bill two years ago. Then you would have been able to bring that to court too. You should pay for the work you got- the judge may award a partial award to the contractor. Let us know what happens.
When we had an estimate for a little roof over the door based in a drawing the contractor did and when he was done the roof did not look like his drawing (the edges of the roof ended at the pillars instead of the roof extending a few inches past the pillars) he agreed to redo it per his drawing. I felt he did not deliver what he had shown me, but he did have to redo some of the work (shingles were not yet on the roof). When he presented the bill, he added in his extra hours but asked if I was willing to split the difference with him. He did not build what he drew, but he did do extra work, so we split the extra amount. I think that an estimate is indeed just that, a guess. Sometimes they find things like rotting boards underneath that require more materials and labor. It is best to always ask for an estimate, but also understand that unforeseen conditions may change the estimate, and if you changed the scope of the project then you need to pay for that additional work. The cost and effort of going to court could have been avoided by talking to him and getting the explanation verbally and then asking if there was any way to reduce the amount. Running a small business is difficult, cash flow is a huge issue, customers who get an estimate for one thing but then keep adding on "little" changes cause problems. You should also know the dimensions of your property and when the estimate came in for xx feet short, you could have pointed that out. I think the contractor is owed the money for the work he did.
Did you pull him up on BBB? Does he have complaints? Has he done this before to someone else?
I'm wondering if this is a common practice for him - writing down on a contract a smaller amount of space that he is working on so that he can later demand more money. Perhaps he has less work right now (or gets bad reviews and fewer people will hire him) so that's when he goes back to the people who balked at his overcharges and sues them.
Do you have a lawyer or is he taking you to small claims court? If you have a lawyer, I'm surprised that he didn't think of that (unless you have no proof, and if he's not mentioned in BBB.)
Sorry about this.
Dawn
