Tag Archives: mitigation

Consolidated Service Group, LLC—“The shingles looked like skunks ….”

The so-called right to cure can arise in a few contexts. It’s better not to conflate them. But that seems on the agenda in Consolidated Service Group, LLC v. Maxey, No. S.D. 33061 (Mo. Ct. App., S.D.). The below blog post analyzes the briefs. The case was the subject of a subsequent decision, 2015 WL 268866.

The basics of the case are as follows:

A contractor, engaged to replace a roof, received defective shingles. The defects were patent.

One may summarize circumstances as presented in the client’s brief (2014 WL 4659565):

“The shingles looked like skunks, in that they were dark shingles with a white stripe running horizontally the length of the shingle.” After the first day, one Benz, agent for the contractor, instructed the workmen not to install defective shingles during the second day of the work. This instruction the workmen failed to follow.

Benz first offered to replace defective shingles individually. That, evidently, would compromise the other shingles, not resulting in the contemplated 30-year roof. The homeowner’s brief reports Benz, in a deposition, admitted that type of repair would damage the surrounding shingles. Some months later, Benz offered to replace the whole roof.

On Benz’s request, the manufacturer sent vouchers to the homeowners’ agent (a relative), in an amount for enough shingles to replace the entire roof and pay up to $4,100 toward labor to install the replacement roof. Benz’s offer to replace the roof was conditioned payment of the initial contract price plus relinquishment to CSG of the vouchers.

The homeowners, evidently having had enough of Benz and CSG, declined to allow Benz to remedy the defect. They ultimately had another firm replace the roof, incurring expenses of almost $3,000 that were not covered by the vouchers.

The trial court was faced with the following question: Is the contractor entitled to recover for a stinky job? It granted summary judgment to the contractor on a breach of contract action.

More after the break …

Continue reading