Pending lawsuit from homeowner, and withheld information.

Started by FrancescaM • 13 replies • 1596 views

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FrancescaM (Washington)
Posts: 264

Posted:

A number of months ago we had some service done on our property by a large company. THis large company subcontracted out ot another contractor to do some basic work in our community parking area.

THe service was done, and there was a claim of damage to a car in the area. The homeonwer lodged a complaint and the subcontractor completed thier work.

The issue? The original large company was referred the auto claim. They claimed that the smaller contractor was to blame and that they neeed to file a suit with them not the larger company. Here it is months later and it wasn't settled so the homeowner has since then served the HOA with court docs for small claims due to the larger company not referring her to the contractor who did the work and the PM claiming they do not know who the sub's were.

SInce this incident occurred we have had a new board on board with some old, some new. Our president asked out PM to help with any information they had as it just didn't seem right. Our president was given a slew of emails between the old HOA president, the PM and only 1 other board member. Meaning the whole board was not previe to this information, only the pres, her friend and the PM. THe emails outline an exchange that also includes the knowlege of who the sub contractors are but the pres clearly emails telling the PM. and the other board member not to disclose this as she "didn't want it to turn legal". This information was never given to the insurance company nor did the rest of the board know. In essence it was an executive decision done without a meeting without a board majority vote.

We are now being sued, and face small claims. I personally feel these emails should be brought to executive session and have a right made wrong.

Can anyone advise me?

FrancescaM (Washington)
Posts: 264

Posted:

Quote:

Posted By FrancescaM on 09/26/2008 6:56 AM
A number of months ago we had some service done on our property by a large company. THis large company subcontracted out ot another contractor to do some basic work in our community parking area.

THe service was done, and there was a claim of damage to a car in the area. The homeonwer lodged a complaint and the subcontractor completed thier work.

The issue? The original large company was referred the auto claim. They claimed that the smaller contractor was to blame and that they neeed to file a suit with them not the larger company. Here it is months later and it wasn't settled so the homeowner has since then served the HOA with court docs for small claims due to the larger company not referring her to the contractor who did the work and the PM claiming they do not know who the sub's were.

SInce this incident occurred we have had a new board on board with some old, some new. Our president asked out PM to help with any information they had as it just didn't seem right. Our president was given a slew of emails between the old HOA president, the PM and only 1 other board member. Meaning the whole board was not previe to this information, only the pres, her friend and the PM. THe emails outline an exchange that also includes the knowlege of who the sub contractors are but the pres clearly emails telling the PM. and the other board member not to disclose this as she "didn't want it to turn legal". This information was never given to the insurance company nor did the rest of the board know. In essence it was an executive decision done without a meeting without a board majority vote.

We are now being sued, and face small claims. I personally feel these emails should be brought to executive session and have a right made wrong.

Can anyone advise me?

That really should of said, a wrong made right. ( haven't had my coffee yet this chilly morning, pardon the typo. )

JohnO6 (Georgia)
Posts: 424

Posted:

If, in fact, a lawsuit has actually been filed against your HOA, the course of action is simple. Turn EVERYTHING over to your attorney labelled as "attorney-client privilege" and seek the legal guidance you now need.

MaryA1 (Arizona)
Posts: 7,043

Posted:

I agree with John. The BOD's attorney needs to become involved since a lawsuit has already been filed.

We had a similar discussion not too long ago. My opinion at that time, and again regarding this case, is that the HOA is liable to make restitution to the homeowner. Then they should file a claim against the contractor -- not the subcontractor. It would be the contractor's resp. to file a claim against his subcontractor. All the member knows is that his auto was damaged by work being performed by the assn. It isn't his resp. to track down the contractor or the subcontractor who actually damaged his auto and, IMO, it's ridiculous to even think it is. And, I don't know that the BOD needs to be concerned about who the subcontractor was -- that is the contractor's problem.

TonyM3 (Arizona)
Posts: 170

Posted:

I suggest you settle asap and be a bit more diligent in the future.

SusanW1 (Michigan)
Posts: 5,202

Posted:

Your PM slipped up, too. This could have been settled long ago.

Didn't the major company have all its paperwork into the PM BEFORE work started, including the list of all subcontractors, their liability insurance, etc. etc.

KirkW1 (Texas)
Posts: 1,665

Posted:

Slow the horses on the running to the attorney. How much is the claim? How much is legal advise and/or defense going to cost? This is small claims court and thus small. (The problem is sometimes in the definition of small.) But the whole point is that it is senseless to spend more on defense then it would cost to lose. I would not go to an HOA attorney though since this really isn't about your typical HOA stuff.

But you should be able to go to the court (lawyers are not needed in most states) and present the facts. You should bring the name of the contractor and a copy of his insurance certificate. (Hopefully you did get this.) The fact the guy had a subcontractor has no bearing on your case.

Now if you win, turning over the information would be the right thing to do. And if you lose, you should absolutely in turn sue the contractor. Your claim is against the contractor, though you can possibly file against the sub. I would start with the contractor since your contract was with him. When he hired a sub, they became his agent. Of course he would go to small claims court and point at the sub.

FrancescaM (Washington)
Posts: 264

Posted:

Quote:

Posted By KirkW1 on 09/26/2008 8:03 PM
Slow the horses on the running to the attorney. How much is the claim? How much is legal advise and/or defense going to cost? This is small claims court and thus small. (The problem is sometimes in the definition of small.) But the whole point is that it is senseless to spend more on defense then it would cost to lose. I would not go to an HOA attorney though since this really isn't about your typical HOA stuff.

But you should be able to go to the court (lawyers are not needed in most states) and present the facts. You should bring the name of the contractor and a copy of his insurance certificate. (Hopefully you did get this.) The fact the guy had a subcontractor has no bearing on your case.

Now if you win, turning over the information would be the right thing to do. And if you lose, you should absolutely in turn sue the contractor. Your claim is against the contractor, though you can possibly file against the sub. I would start with the contractor since your contract was with him. When he hired a sub, they became his agent. Of course he would go to small claims court and point at the sub.

Kirk is right. We can only be advised by an atty... this is small claims. The final amount is just under 5K. There are no atty's allowed in small claims. Only those invloved, they present their cases and a judge has the full decision. I myself have NOT been served, but if I do, I am sworn to tell what I know... and in the end we will be responsible. It's just the way it will fall.

GlenL (Ohio)
Posts: 5,491

Posted:

Francesca, check with your attorney to make sure you don't need an attorney, don't assume in this matter. When one of the parties is a corporation (the HOA) it may need to be represented by an attorney in SC. We went the small claims route trying to recover the cost to repair damages done to our clubhouse by someone who had broken into it. I went for the Association and filed, went to court, got a judgment, then had the thing overturned because the corporation wasn't represented by an attorney and had to do it again this time with the attorney again in SC.

Studies show that 5 out of 4 people have problems with fractions

SusanW1 (Michigan)
Posts: 5,202

Posted:

Most likely, the HOA will be ordered to pay the claim - THEN the HOA will have to turn around and sue the main company. (The lawyers will be the real winners in this case!)

IN THE FUTURE - be SURE that any company you hire is well aware that they are responsible for any outside damage done by their vehicles or employees while on the job - no matter WHERE is occurs.

Our bridges (metal railings, etc) get hit all the time - by garbasge trucks, road maintenance trucks, etc. We are constantly contacting these companies for re-imbursement for damamges. We repair the damage and send them the bill. So far, everyone has paid their invooices. They don't want to lose the main contract.)

FrancescaM (Washington)
Posts: 264

Posted:

Quote:

Posted By SusanW1 on 09/27/2008 7:22 AM
Most likely, the HOA will be ordered to pay the claim - THEN the HOA will have to turn around and sue the main company. (The lawyers will be the real winners in this case!)

IN THE FUTURE - be SURE that any company you hire is well aware that they are responsible for any outside damage done by their vehicles or employees while on the job - no matter WHERE is occurs.

Our bridges (metal railings, etc) get hit all the time - by garbasge trucks, road maintenance trucks, etc. We are constantly contacting these companies for re-imbursement for damamges. We repair the damage and send them the bill. So far, everyone has paid their invooices. They don't want to lose the main contract.)

Thanks for the input. It's just a different situatin, and the fact that I know our past board president withheld information with more than several requests for this is pretty upsetting. I have in front of me. 30+ pages of emails from our PM company. About half of these pages are full of emails from the ex president and her friend on the board only. It ls clearly written in more than several emails that she doesn't want the shared information given to the board, nor does she wish to give the homeowner with the damages the subcontractors information. It clearly states "this is legal and I don't wand us involved!"

Since this discovery the ex president is well aware that we know what she did . She is on the board, and she has also been informed that her emails may be supeoned.. and we will be willingly handing them over. She herself may be sued if the homeowner wishes. If would serve her right for acting outside of her scope and making executive decisions on her own

KirkW1 (Texas)
Posts: 1,665

Posted:

First, the advice that only an attorney can tell you if they can assist is wrong. You can find information on the web.

Two different places on the web indicate that attorneys are not allows in small claims court. Here is one: http://www.consumeraffairs.com/consumerism/small_wa.html

The following link gives information on all state's small claims courts:
http://www.freeadvice.com/resources/smallclaimscourts.htm

Included on this page is a link to a document straight from the relevant court's web site: http://www.courts.wa.gov/newsinfo/resources/brochure_scc/smallclaims.doc

Your best course of action is to get a copy of the complaint. Then gather your documents. You might wish to consult with your attorney as he/she will be able to tell you if the pass the buck routine will work or not.

Above all else, I would look to right the wrong. There is nothing to keep you from trying to settle up with the plaintiff. In fact, the brochure says this is encouraged. They would rather you settle on your own. To that end if a consultation shows that the owner should have sued someone else, then share that information with the owner.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

An attorney, can and usually does, represent a corporation in small claims court.

GeorgerwilliamsW (Indiana)
Posts: 975

Posted:

Quote:

Posted By GeorgerwilliamsW on 09/27/2008 5:26 PM
An attorney, can and usually does, represent a corporation in small claims court.

Here is the specific handbook text for Hoosierland small claims courts:

Representation at the Trial - Attorneys

However, a person is allowed to hire an attorney and have the attorney appear with him or her at the trial.

Corporations - Representation in Small Claims Court

As a general rule, a corporation must appear by counsel.

http://www.in.gov/judiciary/pubs/handbooks/small-claims-manual(2005).pdf

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