Continuation of “A Certified Package Hits Your Desk”

Tuesday, September 6, 2016


Several years ago, several of us were talking to a veteran commercial airline pilot…about how "neat" it was to fly all over the world. He commented: "Maybe not that big a deal...Computers do most of the flying…A little bit of real hands on," but then he added..."It's really hours of boredom and occasionally moments of sheer terror"!...Not that we really get "bored" in this business, but lots of the time, it runs along pretty predictably, and then you get hit up the side of the head...Like that aforementioned three-pound Certified package hitting your desk.

So, you've got the package, finally read and re-read it enough to really get the gist of what's in it...Seems the very "wounded" homeowner is suing the Builder (big time!) for lack of performance for certain products. As I mentioned in the first article, we had nothing to do with Installation. At the end of the day, it was just a product sale. Plain and simple. But then, through our past experiences with events like this, you remember, "No matter what--you're going to have a seat at this Bad Boy table." You see, this is the way it works. The Builder, who probably hasn't got a pot to pee in, nor a window to throw it out of, "Rationalizes": "I now have to sue that pesky, rich lumber company...Of course they sold me ‘faulty’ product, and that's where the blame is going to rest.” Translated: The Builder has no "Bucks" to go after, but that "rich" lumber company, and that "rich" window and door supplier, Truss Manufacturer, whomever, they're going to be made to "Pay" for these transgressions...even though the Builder is probably well aware how it’s really his/her fault.

At the very first, it is important to remember that when you get his initial package, it may be just the homeowner’s attorney suing that Builder. In other words, you get a copy of this suit, but aren’t' "Named" at this point. Just the same, they're "demanding" you send invoices, documents, etc., directly to them (the attorney representing the homeowner). This is pure and simple the first "Fishing Expedition."

Despite the fact you aren’t “Named” in the suit, it is still crucial that you immediately talk to a legal representative. In most cases, this is your insurance carrier who in turn appoints a legal representative to the case and they are the contact from that point forward. In our case, we were told NOT to respond to that first attorney directly suing the Builder. Their attorney will "hope" you'll kind of panic, and start sending them this stuff directly...Please remember this is the initial "Fishing Expedition" and if you just jump in the game without contacting your Insurance carrier...Shame on you. No, I'm not giving legal advice! The point is when these things start, always talk to your "Legal" first...not after you've begun to "Respond."

So, here's where we go with this: Even though, in your heart and soul, you know you did nothing wrong, you'll be in the middle of it...the Builder has to cast his net somewhere, and you're immediately targeted. Since many of these lawsuits can take unexpected twists and turns, with huge implications, the first thing we always do is contact our insurance carrier immediately. We let them know about our three pounds of Certified Mail, explain what it says, and ask the question, “How can we now help you?" And in cases like this I immediately go to the affected Division of the company, to all the parties involved. This includes the Sales team, production/delivery team--everyone that had a hand in it. And my request to all: “Put your complete folders together to present to our insurance attorney.” When I say everything, I mean Everything...copies of quotes, invoices, emails that may have had to do with bidding, and (especially pertinent) any correspondence where we bid, but didn't get the "Installation" contract. And we have Sales folks that are very good at noticing (negative) anomalies where they may have communicated with the Builder, or his Superintendent, or in some cases, we've gotten involved with the homeowner directly...at the request of the Builder.

Over the years, I've been kind of amazed when we wind up in some of these situations, how thorough we've become in what I call the three "Ds"...Document, Document, and Document. (In the good ole Wickes days, we called it our CYA file!!! You know what CYA spells!) And I'll stop with a bit of good news...On the other side, the Builders (as we know) are not often "well organized"...Even at times on big projects, their "filing system" may be the glove compartment of their pickup truck...the folders spread out on the truck’s dashboard, or honestly, sometimes it's just what they're carrying around in their heads...

If you have your three “Ds” in order, you can relax somewhat. In the final confrontation, watch the Builder say, "I told your Salesman, X, Y or Z...he knows what I said"! The attorney says back, “Well, Mr. Builder, you have a ‘document’ of some sort to back that up....Right?” Nine times out of ten, the answer is "Well no...but he knows!"

My quick summary at this point...Just can't document things too much. Take nothing for granted. Don't think it will turn out "small" because we only sold product--seems these folks just have that bad habit of lashing out at that "rich" lumber company and "rich" vendor/manufacturer. Take "Emotion" out of it....Just deal with "facts." When you talk to attorneys, don't hesitate, if the attorney is on "our side"....Share everything you know. If the attorney is on the other side, only answer their particular question...Never, never start "volunteering" stuff! (Don't get Chatty"!) Especially on these big projects, keep good files for an ample length of time. I've had "wounded" homeowners come back, three, four years down the road with "grievances" when product starts failing or they may be seeing mushrooms growing out of their closet! (True Story!)

I’ll end the subject with this: A few of these situations at Kimal remain "in play"...so at some point I'll kind of generically share the outcome, without giving up a confidentiality we have regarding the case. Bottom line: If we do our jobs correctly, with good documentation, for all of it, we shouldn't have to worry a lot...If we fail to do a great job of keeping track of the details...Shame on us!

Good Selling.

Al E. Bavry, CEO, Kimal Lumber & Hardware 9/6/2016

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