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    Do I sue Sears with lawyer, or small claims for 3k in Michigan, for inaction?

    Asked Jan 9, 2009, 06:23 PM 8 Answers
    Wife and I were getting bids on a Heat Pump-Like an air conditioner in reverse that heats your house in temps over 30 degrees. In Michigan it goes on a separate meter that costs 4 cents vs. 11 cents per K hour. Propane gas at 500 a month was killing us. 1st guy to come out was Sears. Gave us a price we had to do that day-but I asked him to let me check with a friend who was in the business. He was sure no one could beat it with all the specials he had on the equipment, and his being a "complete price". Verifying it, we went a head with the deal. This was October 15th. He said it would take a week or so to get things together.
    We called a week later and their rep asked about who to contact about installing the second meter. We gave them DTE number, and on a follow-up call a week later, by the 13th of November an electrician Sears sent came out to the house. Since then the wife did weekly follow-up calls-no one from Sears EVER called us. The rep in charge of the installation hinted they may have underestimated the cost of installing the send meter. It was a box and wiring-Edison supplied the meter and hook-up. Then we never heard anything.
    Finally on Dec. 2nd I took over from my wife and called them. The Manager said they would hook up to our current meter (the contract said hook up to current electrical,(did not need another amp main panel) under other it said" install a 4 breaker panel. (In electrical section) I went to the BBB and Sears told the BBB on 12-15-08. "Production problem additional materials need to be order. We are working with the customer to reach an amicable resolution. We will keep you updated on the service issues."
    I was put off a couple of more times by Sears- then on the 31st of Dec was told by Sears that they were only going to hook up to my 11 cents a KWatt meter- since "Under Special Instructions" in their contract it did not list another meter. (They did not list they would install Heat Pump "after meter is installed" either under Special Instructions. (Why'd they send out an electrician on November 13?) Complete cost was 3700.00. I think he allowed 150.00 for electrical. Cost probably more like 500-800, from electricians I've talked to. Sears electrician may have been at 2,000.00.
    Now, today on 1-8-09 I get a box from the BBB with a letter from Sears saying I refuded installation being hooked up to "Current Electrical" so I voided their contract.
    I need advice! Should I go to Small claims where you can only collect 3k- I feel not being contacted until I called on Dec, 2nd- was a breach of contract. I've been paying for propane when I could have been using the Heat Pump at half the cost. Phone records will show all contact from this end, until I got involved. What do I do?

    Last edited by gordiehowe; Jan 9, 2009 at 06:28 PM. Reason: had to add est. costs
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    8 Answers
    excon's Avatar
    excon Posts: 21,436, Reputation: 2985
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    #2

    Jan 10, 2009, 06:51 AM


    Hello gordie:

    I see some of your costs, above, but I don't see anything where it says that you PAID them... You can only sue for what you are out.

    If your max in small claims is $3,000, then that's where I'd sue. NO lawyer will take on this case for less than that.. But, before you sue, I want to know how much actual cash you're OUT.

    excon
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    JudyKayTee's Avatar
    JudyKayTee Posts: 46,513, Reputation: 4591
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    #3

    Jan 10, 2009, 06:55 AM

    All of the terms of the "agreement" are in the contract. If they did not fulfill the terms of the contract, then you have an action against Sears for any additional costs you had to incur. For example, if the job was supposed to cost you $1,000, they didn't finish the job, you had to pay $1,500 you are out of pocket only the $500 - the additional cost.

    It also has to be a significant breach, out of their control UNLESS you had a "time is of the essence" clause in the contract.

    You could always factor the extra cost and sue in Small Claims Court but then it will depend on whether the terms of the contract were met; if they were not met, why; was this a material breach; was time of the essence.

    As with any other large corporation Sears has a bank of Attorneys sitting around, getting paid to look out the window or go to Court to fight lawsuits - they have considerable legal ammunition at their ready disposal.

    I'd go back to the BBB and put some pressure on Sears.
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    gordiehowe's Avatar
    gordiehowe Posts: 11, Reputation: 1
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    #4

    Jan 10, 2009, 09:55 PM

    I'm not out actual cash. Sears never installed
    Heat pump. That is the problem. They took us out of the market. I think they made a mistake in figuring out the cost of putting in a separate electric meter.The never called again unless we called them. I guess they just walked away from it. We wanted to save on energy. A heat pump works over 30 degrees. We are spending at least $500 a month on propane, which we would not be doing if a week or two later, they had let us know there was a problem, we could have gone elsewhere. I'm out heating costs because they did not address their problem. The salesman was back a week after he had presented the costs, and we signed that 3 day cancellation notice, Se he had at least 10 days to follow up on anything he had presented to us. It was around Thanksgiving that we had a hint they had a problem. I had a guy out here the other day who said it is a matter of days to install one. They would do a Trane or Lennox -top of the line heat pumps for $4,500.00. To hook up another meter was around $500-800.00. Sears could have called and said we have a little problem-they never did. Not until I started calling Dec. 2nd. To me, they breached the contract.Now, it's a matter of principle.
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    JudyKayTee's Avatar
    JudyKayTee Posts: 46,513, Reputation: 4591
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    #5

    Jan 11, 2009, 06:21 AM
    Quote Originally Posted by gordiehowe View Post
    I'm not out actual cash. Sears never installed
    heat pump. That is the problem. They took us out of the market. I think they made a mistake in figuring out the cost of putting in a seperate electric meter.The never called again unless we called them. I guess they just walked away from it. We wanted to save on energy. A heat pump works over 30 degrees. We are spending at least $500 a month on propane, which we would not be doing if a week or two later, they had let us know there was a problem, we could have gone elsewhere. I'm out heating costs because they did not adress their problem. The salesman was back a week after he had presented the costs, and we signed that 3 day cancellation notice, Se he had at least 10 days to follow up on anything he had presented to us. It was around Thanksgiving that we had a hint they had a problem. I had a guy out here the other day who said it is a matter of days to install one. They would do a Trane or Lennox -top of the line heat pumps for $4,500.00. To hook up another meter was around $500-800.00. Sears could have called and said we have a little problem-they never did. Not until I started calling Dec. 2nd. To me, they breached the contract.Now, it's a matter of principle.


    You can only sue for monetary loss - and you have already said you are not out actual cash.

    If it's a matter of principle and you have the time and energy, pursue it in Small Claims but, as I said, I don't see a case here.

    At some point in time the consumer is expected to take action to mitigate damages. When that would have been is open to interpretation but, again, you aren't out any money and you can't sue for pain/suffering/emotional distress on a contract.
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    gordiehowe's Avatar
    gordiehowe Posts: 11, Reputation: 1
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    #6

    Jan 11, 2009, 06:41 AM

    Thanks - I am out energy costs on propane-which I would not be paying if the heat pump was in.
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    JudyKayTee's Avatar
    JudyKayTee Posts: 46,513, Reputation: 4591
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    #7

    Jan 11, 2009, 06:45 AM
    Quote Originally Posted by gordiehowe View Post
    Thanks - I am out energy costs on propane-which I would not be paying if the heat pump was in.


    You can't argue on one hand that you are not "out" any money and then on the other that you are "out" on propane costs.

    The Court is not going to rule on "what if's" or "if only's." "If only I had had the heat pump" is not a legal argument.

    But, again, if you feel strongly, file in Small Claims Court and see what happens.
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    gordiehowe's Avatar
    gordiehowe Posts: 11, Reputation: 1
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    #8

    Jan 11, 2009, 06:48 AM

    Boy that was quick! Thanks again
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    Fr_Chuck's Avatar
    Fr_Chuck Posts: 75,720, Reputation: 7217
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    #9

    Jan 11, 2009, 08:01 AM



    Exact for actual loses, is all you can sue for, if you had a contract for a certain idea and they will not honor the contract and will not install the unit, then you get one installed, pay for it, and sue sears for the difference between what they gave you a bid for and the actual costs.
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