Mostly my question is, “Should I get a lawyer, or is this hopeless?”
Nine years ago we had a deck built. The decking is Trex but the joists are wood. I discovered that most of the joists were rotting, most from the top down. The manufacturer has a lifetime warranty, but only for materials. I will be on the hook for thousands in construction costs to replace joists on a deck that is already built. This is not just like one joist failed, it seems to be a systemic failure of the entire lot. The installer said they have seen another case like mine from a build at about the same time. I do not know how to find out if this is a broader problem for this manufacturer.
I saw an install by the same installer from five years earlier that looked like the day it was installed, so I know this is not normal aging.
Is there any hope of legal action that would result in reimbursement for labor costs in addition to the materials warranty?
How is that not a failure a material failure? My guess would be that they did not use pressure-treated lumber or used some inferior grade (borate treated) not for outdoor use.
I would talk to a lawyer who works on these kinds of cases. I’m sure you can sue someone, but the cost of litigation may not be worth it for you. Make sure you have all of your documentation on the project handy since they need to know who did what when. You probably have some recourse, but if you have to go to court that’s gonna cost you $$$.
Which manufacturer is this? The manufacturer of those rotten joists? I didn’t think those joists would come with that kind of warranty. But even if that’s the case, I would guess that the cost of the joists is the only thing they would cover. The costs of replacing the rotten joists would not be recoverable.
Rather than redoing the whole deck, one option might be to just install new joists near the rotten ones. It looks like there’s plenty of room below. Jack up some new temporary joists into place from below to support the deck, remove the rotten joists, and install a new joist in its place.
Ah, got it. In that case, if you could establish some specific negligence on the part of the contractor and sue them on that basis, but many contractors are used to being sued, and it may end up being like squeezing blood from a turnip even if you can demonstrate that they used inferior materials.
That would be what I would do if it were one or two joists, but if the entire deck is like that and if the access under the deck is limited (which it looks like it may be) it might just be easier to pull up the entire deck surface and replace the joists a section at a time. Assuming the footings and posts are still intact you could temporarily frame out any structure that needs support, pull up the decking, and then replace the joists across one section rat a time rather than fussing about trying to puzzle fit joists in underneath the deck. Putting the already pre-cut decking back on is a pretty minor amount of labor compared to working in a low clearance environment. And while you’re going to the effort, install some joist protection so that this doesn’t recur.
I am no expert, but that sure looks like dry rot to me (ironically, I’ve always thought, caused by moisture). The contractor can’t have used the proper kind of pressure-treated lumber for this job. I don’t know about material warranty for lumber (I would be surprised if the warranty was for those pieces) but this looks like contractor negligence to me (again, not an expert, but I have dealt with contractors before, and I don’t trust most of them as far as I can spit).
If it were me, and if a lawsuit against the contractor seems called for, I would want to stipulate that the former contractor would pay for a different contractor (of your choice) to re-do the work. You don’t want the same contractor who failed you the first time to have a chance to do it again.
The contractor ordered the proper lumber from the lumber supplier, and it is the lumber supplier’s warranty that comes into play. The contractor did what they were supposed to do, and can be faulted only for trusting the supplier. However, my layman’s opinion is that this is not a statistical manufacturing defect, like one part out of a thousand that is out of tolerance, but rather a systemic failure in the manufacturing process that resulting in massive and consistent substandard quality.
In the UK, the liability would rest with the installer, since the OP’s contract was with them. Trying to pass the blame onto the supplier of the timber, who may want to pass it further simply wouldn’t wash.
If I buy a kitchen appliance, it’s the shop I buy it from that has to repair or replace it when it goes wrong. There may be a manufacturer’s warranty, but it’s still the dealer’s problem.
When I’ve had major work done, like AC replacement, the warranty from the installer is often something like “1 year labor, 10 year parts”. Free labor would be included if something breaks during the first year, but after that it would just be free parts and I’d have to pay for labor. I would guess that the deck installer had something similar in their terms, where warranty labor was for just a short time.
I’m curious how you know this to be true. In my dealings with contractors doing home renovations, and a new deck last year, I have never been privy to any of the contractor’s dealings with suppliers, I only had what he told me to go on.
“Dry rot” or brown rot is caused by specific types of fungal infestations. The fungi require some moisture to grow but leave a dry, crumbly residual, in comparison to “wet rot” or white rot, which has a moist residual. Agreed that the contractor must have used inferior treated or untreated wood for this to have occurred so quickly and completely, and it should be the contractor’s responsibility to assure that the wood was correctly specified and provided as well as using protective measures like flashing, sealant, and assuring that there aren’t large areas for water to pool.
I haven’t heard or problems with counterfeit lumber but back when CCA-treated wood was being phased out for most residential use, there were a lot of alternate treatments that were being used that didn’t provide nearly as good rot resistance, especially if other weather and water protections weren’t used. If you don’t want to go through this again in another ten years do a bit of reading up and ask your new contractor what they plan to do to protect against rot.
It turns out that the company I’ve been dealing with on the warranty is not the lumber company. They make the chemicals used to pressure-treat the lumber. So now the supply chain is the chemical company, the lumber company, and the installer.
The chemical company told me their tests are inconclusive but they offered me a goodwill settlement of $650 pending a repeat analysis. I am expecting it to cost several thousand dollars to replace the joists. Further, if they find that the lumber was not treated with their product, or not treated properly, I would assume that their warranty would not apply.
The installation contractor offered a three-year warranty, and the work was done nine years ago.
I do not know who the lumber company is, or whether there is any kind of warranty from them.
In a case like this, where warranties have expired and there are no consequential damages, is there any basis for a lawsuit claiming negligence either by the lumber company or by the installation contractor?
It is my understanding (IIRC) that there are some jurisdictions in which some warranty disclaimers (or durations in effect) can be overridden by a Court that finds either fraud, negligence, or gross negligence, any of which can be high bars to clear.
If your installer was supposed to use PT lumber for the joists and did not, that may or may not constitute negligence or gross negligence, but it’s surely an expensive thing to determine, legally.
It would very likely have to be adjudicated, unless fate smiled upon you and the contractor took responsibility for a pretty egregious mistake (using the wrong lumber).
And, in litigation, you’d quite likely be up against a law firm funded by your contractor’s insurance carrier (ie, high priced, high powered).
So … this will likely vary by jurisdiction, and it will matter whether the bar to be reached is “negligence” or “gross negligence.”
Think of the difference between civil cases (preponderance of the evidence) and criminal cases (beyond a reasonable doubt). It’s not unreasonable to look at the difference between negligence and gross negligence in a similar way: the latter is a significantly higher bar than the former.
You might be able to pull this off in small claims court (IIRC <$5000). A full blown lawsuit wouldn’t be worth it.
As a contractor, I’m somewhat confused. Most pressure treated wood comes treated from the mill–i.e. Weyerhauser or Roseburg does the treating and offers a warranty. Is that the case here or was it perhaps on-site treatment? If it’s the latter I’m not surprised it failed.
Fun construction lawsuit story–we just finished a pretty nice house for ourselves in MT. It was going to have concrete floors. We went the extra mile and put down Ramboard cardboard for protection and used their product that adheres to itself. When we pulled it up the adhesive had caused the concrete to cure differently and there were bright white stripes every 3 feet. Ramboard told me to pound sand. Called a couple of lawyers and was told the cost of the fix ($30k) wasn’t worth going to court… YMMV.
