Defending Missouri Merchandising Practices Act Claims
Any contractors who work on residential property will inevitably have to deal with a difficult customer at some point in their career.
The customer may raise various issues about your work. like complaining about whether the work is defective or not, the aesthetic appeal, and a garden variety of other issues that arise in these situations.
In the event that a consumer, or “putative consumer,” brings a claim against a contractor on the basis of the Missouri Merchandising Practices Act, the contractor’s attorney should know several defenses to protect the client from such claims.
This article was designed to provide a few but certainly not all, common defenses used by a contractor in a Missouri Merchandising Practices Act claim case.
The first defense deals with the issue of damages.
1.No ascertainable damages – the work was not defective, or even if it was defective, no damages resulted
One of the elements of a Missouri Merchandising Practices Act claim is that the damages need to be ascertainable. Oftentimes the homeowner may be unpleased with the work product of a contractor, but the homeowner will not have actually incurred damages.
The homeowner’s dissatisfaction with the aesthetics of a contractor’s work product might be an example of an area that may not cause the homeowner actual damages.
This is not always the case, however, as it may be a question of fact for the judge or jury to make a judgment call on as to what the contract says regarding aesthetics and/or whether the work was performed in a good and workmanlike manner.
Another situation where the homeowner may not incur damages is if a contractor performs defective work on a project but subsequently remedies that defective work.
In any event, the damages element of the Missouri Merchandising Practices Act is a susceptible place which your lawyer should consider attacking in the event you are sued in these types of situations.
2. Superseding/Intervening Force (i.e., third party) caused damages
If the contractor was not the cause of the damages, then obviously the consumer’s claim is subject to attack. This is a common defense as many projects consist of a slew of different people working on the job simultaneously.
The work performed by one contractor may cause damage to or adversely affect the work of another contractor. In these situations, the superseding/intervening force (another contractor) can be a defense to a Missouri Merchandising Practices Act claim.
Depending on the language contained in the contract, acts of God may also relieve a contractor from contractual duties. As this defense is specific to the factual circumstances, and in particularly the language in the contract, each case needs to be individually assessed.
If you have a question about a construction law case, please feel free to contact one of our attorneys.
3. The construction work was not for personal, family, or household purposes
If you’re working on a residence, you still cannot be sure that the residence is owned by a consumer. This element must be proven by the alleged consumer.
However, when a project has commercial aspects or when the owner of the property, even if it appears residential, is a commercial entity, you may have a defense to a Missouri Merchandising Practices Act claim.
One example of a susceptible area of attack would be work performed on a rental home. Often times limited liability companies will own rental homes and will have a contractor perform work on their property.
If you are a construction company defending a consumer protection act claim, you should always check the deed of the property and be cognizant of the entity that is making the payments.
Depending on the factual circumstances, a lawyer defending one of these cases may be well-advised to assert a defense attacking the personal, family, or household element.
Conclusion: Contractor Defenses Against Consumers on a Construction Project
This article gives a few defenses that you can assert as a contractor if you’re caught in the middle of a consumer protection case. There are other defenses out there, but you should always consult an experienced construction law attorney when preparing your defense in a case.
The following is a list of the three potential defenses discussed in this article:
- No ascertainable damages – the work was not defective, or even if it was defective, no damages resulted
- Superseding/Intervening Force (i.e., third party) caused damages
- The work was not for personal, family, or household purposes
Depending on the facts of your case, these defenses could be your liability shield. Your lawyer should be aware of these defenses and, more importantly, should assert them in any applicable cases.