Archive for the ‘Home Improvement’ Category

Violating a Consumer Fraud Act regulation can result in individual liability for employees or owners

Written by PisauroLawAdmin on August 15th, 2011 in Consumer Fraud, Home Improvement | No Comments »

Recently, the New Jersey Supreme Court issued a new opinion further defining the reach of New Jersey’s Consumer Fraud Act. In Allen v. V and A Bros., Inc., the Supreme Court ruled that an employee or owners of a company who has violated a regulatory provision can be liable under the consumer fraud act.  It is not new that owner can be liable with their own intentional misrepresentation of fact and thus liable under the consumer fraud act.  What is new is that a violation of a regulation, which may be truly a technical violation and not one that requires intent, can lead to the personal liability of an owner or employee responsible for the implementation of the regulation.

It has been the law for many years that an officer or employee could be liable for their affirmative act of misrepresentation or omission under the CFA. It was the individual’s acts that created the liability against them as well as their corporate employer.  In Allen the question became, in the absence of an affirmative act of misrepresentation, could an employee or owner of a company be personally liable under the CFA for violating a regulation.  A regulatory violation is a strict liability and does not require an affirmative act.  In this case, the plaintiffs allege that the contractor violated several regulations affecting home improvement contractors.  They alleged that the contractor did not have a written contract under NJAC 13:14A – 16.2; failed to obtain final approval for the construction before obtaining final payment as is required by NJAC 13:45A-16.2 (10), and finally that the contractor failed to obtain their consent for modifying the design as required by NJAC 13:405A -16.2 (a)(3) (IV)

Each of the regulations alleged to have been violated regulated the conduct of a “seller.”  The regulation’s definition of the “seller” means a “person engaged in the business of making or selling home improvements  . . .” and included not only the business entity but “their officers, representatives, agents and employees.”  NJAC 13:45A-16.1A.  Given the regulations’ definitions and the definition of person under the CFA, the Court had little trouble finding that an employee or officer could be liable based upon the liberal interpretation required of the CFA.

In this instance the Court had little trouble finding the owners and employees could be liable for violating the particular regulations and therefore, the Consumer Fraud Act.  The Court was also quick to point out that not all regulations may result in the liability of the individual.  Individual liability would be decided based upon the wording of the regulation.  So if a regulation only regulated the conduct of the business entity and did not extend to its agents, then only the entity could be liable for the violation.  Also the Court noted that if the business entity had a “policy” of not requiring a written contract, than its employees may not be liable for carrying out that policy because the employee had little choice in the employee’s actions.

The lesson to be learned is if you are an employer make sure you and your employees understand and follow the law.  If you are an employee it is for your own protection to understand what the law requires of you and not to violate it.  Neither the employee/owner nor the business entity wants to liable to a customer for triple the customer’s damages and to pay the customer’s attorney.  Violating a regulation, even if unknowingly, could put you and the business in that position.


Legis Update: Bill to benefit contractors, sort of . . .

Written by Mike Pisauro on February 22nd, 2010 in Contracts, Courts, Home Improvement | No Comments »

S1032 sponsored by Connors would allow a contractor or a homeowner to bring a lawsuit in the county where the property is located if the lawsuit is under the Contractor’s Registration Act.  While I am not sure why a contractor would be suing under the act, the act changes the where a plaintiff can file a lawsuit.

Normally, lawsuits over $15,000 are filed in the Law Division of the Superior Court of NJ.  In the Law Division a plaintiff can file suit where they live, where a defendant lives, or where the action occurred.  That would mean a contractor could file suit in Law Division in the county where their business is located.  S1032 does not change this.  S1032 is meant for cases under $15,000.  For cases under $15,000 a lawsuit can be filed in the Special Civil Part.  In the Special Civil Part a lawsuit can only be venued where at least one of the defendants residences.  S1032 is meant to cover these kinds of cases.  The bill statement provides that its intent is for:

Home improvement contractors who are located in the State’s beach communities have found it difficult to pursue lawsuits against homeowners who have defaulted on payments for services rendered because these homeowners do not live in the same counties as their vacation homes.

So under the bill when a contractor does work on a shore house where the owner does not live, they can do not have to go to the county where the owner lives, but can file suit in the county where they did work.  The contractor could have always filed in law division no matter what the amount of damages, but the down side would be that a lawsuit in the law division can take several years before there is trial.  In Special Civil Part the cases move much faster.

Since the bill only applies to non-commercial property, hopefully the courts will not consider purely rental properties as commercial.  If so the bill would not apply and the contractor would be back to either filing in Law Division or filing the lawsuit in the county where the property owner lives.  Another work around would be for the contractor’s contract to provide where a lawsuit may be filed.


Home Improvement Contractors bill

Written by Mike Pisauro on December 8th, 2008 in Home Improvement | No Comments »

Today in the Assembly Regulated Professions committee A2532 will be considered.  The bill would alter the normal course for cases brought in the special civil part against home improvement contracts.  Cases brought in the special civil part are case with values of $15,000 or less and provides for a quicker time between filing and trial.  Under the Rules of Court, cases in special civil part must be filed in the county where at least one defendant lives or works.  This bill changes that rule.

Under the bill the homeowner could bring the case where the homeowner lives and not where the contractor is located.  This makes life somewhat easier for the customer but could make it somewhat harder for the contractor.

Assuming the bill eventually becomes law, a contractor can alter the application of the law with the contractor’s contract.  The contract could provide that that all cases against the contractor must be brought in the contractor’s county and not that of homeowner.  The contract could also provide that the homeowner could not file in court but must seek arbitration.

Update 12-9-08:  The bill “passed” out of the Housing and Regulated Committee and sent to the Assembly Judiciary Committee. Once its is out of the committees the full assembly can vote on the bill.  A similar process has to occur on the senate side.