ProTech HVAC

The Wild Wild West of the HVACR Trade Will Soon be Wilder

By John W. Rocheleau

“Mission Statement: To preserve the rule of the law and to protect the rights and liberties guaranteed by the United States and New Hampshire Constitutions, the courts will provide accessible, prompt, and efficient forums for the fair and independent administration of justice, with respect for the dignity of all we serve.” So goes the mission statement of the New Hampshire Judicial Branch of government. Accessible, prompt and efficient access to the State courts in New Hampshire may soon be a thing of the past, as Governor Lynch’s budget cuts to the NH Judicial system will help to speed to that reality.

I will be expert in a long-awaited trial that has been taking shape for nearly 5 years, in Sullivan County Superior Court, on April 21, 2010. This case arose out of claims by a home-owner that its builder and subcontractors were negligent and fraudulent in their performance of their duties to construct the house and its systems with professionalism and competency. While there were numerous problems with the house, the first that caught the new owner’s attention was the enormous propane gas bill for the months of March and April of 2005. These bills approached $2,000 a month! It turned out that the heating contractor did not effectively insulate the radiant floor heated concrete slab, resulting in the majority of heat being transferred into the ground, as evidenced by the absence of snow around the concrete foundation.

It is further alleged that the septic system, water well, modular home components, air conditioning, ducts and other details of the house construction were shoddy and defective.

The builder, United Construction, of Newport, NH has contested many of these claims and has chosen to litigate the claims in Superior Court, rather than settle the claims out of court. Like many on the defense side of legal claims, United seems to have hedged its bets that the plaintiffs would never be able to afford the long road of financial expenses that can lead to “one’s day in court.”

In reality, the plaintiff’s day in court will amount to 2 weeks of trial, but not before accruing, potentially, over a hundred thousand dollars in legal and expert fees. Fortunately, for the plaintiffs, they found a willing trial lawyer who would take the case on contingency. Regrettably, Ron Snow, of Orr & Reno, regarded as one of the best trial lawyers in the state, succumbed to pancreatic cancer in a matter of days after being diagnosed, and the case stalled. Next, the case could not get a court date because there are not enough judges in NH courts to hear all of the civil cases and the case was indefinitely postponed. It appeared that the defendants might get their wish. Finally, it was decided last week that the case could and would be scheduled for trial. Most cases are not so fortunate, however.

In fact, most cases like the plaintiff’s in my example never even get filed with clerks of court because plaintiffs can’t afford the incredible expense of fighting a worthy case. Also, many contractors’ insurance policies protect them against law suits, leaving the plaintiff financially disadvantaged. In the above example, there were 5 lawyers for the defendants at my deposition, compared to one for the plaintiffs.

“Most importantly, your generation of lawyers and judges will be called upon in many ways and in varied circumstances to decide whether state courthouses are truly open to all our people or whether they serve only the wealthy and the well to do. Current trends are disturbing. A justice system, which pulls up the gangway on the poor and middle class, is no justice system at all and will not long maintain public trust and confidence. A justice system, which is too expensive and too inefficient for too many, cannot fulfill the promises of our Constitution or the obligations of the legal profession itself.” - convocation remarks by NH Chief Justice John T. Broderick, Jr. at Syracuse University College of Law, Syracuse, New York, February 22, 2010.

Most home-owners seeking so-called justice don’t even try to seek it because of its enormous expense. In my 10-year battle with Taco, Inc. (licensee of my numerous inventions), I was forced to use a different strategy for dealing with them rather than expending a minimum of $500,000 to take them to Federal District Court. Who has that kind of money? Ultimately, my strategy won out and I forced a settlement with Taco, Inc., but not first seeking help from then Congressman “Jeb” Bradley and Congresswoman Carol Shea Porter.

It’s not just the monumental expense of fighting a legal case through to a jury verdict, of greater concern is the fact that state civil jury cases are at unprecedented threat of disappearance. Governor Lynch’s decision to cut back the number of days courts can be open is a direct threat to everyone hoping to have their day in court in New Hampshire. Soon, there will not be “accessible, prompt and efficient access to the State courts in New Hampshire”, compounding the reality that, in my personal opinion, there is only justice in our legal system for those who can afford it.

The way things are in business, many consumers of HVACR products and services are taken advantage of before they even know it, and many never find out. I see this routinely and can spot a situation like this almost immediately when I see a new customer’s heating, cooling or refrigeration equipment for the first time. This happens often for the simple reason that the layperson does not understand the requirements of HVACR system design, installation and service. They do understand that their fuel bill shouldn’t be $2,000 a month, as in the opening example in this article, but by the time they realize it, it’s too late. It often costs more to buy justice than it does to buy a new heating or cooling system, far more.

How does one protect themselves from fraud and incompetence? “One” must become educated about their pending purchases and research the backgrounds of those who they are considering proposals from. Only then does the consumer have a chance of not getting stiffed.

I recently had a prospective customer tell me that he didn’t “need to know a dimple from a damper” when I offered to meet with him a final time to discuss a design and proposal for a new heating and cooling system that would replace the one that his previous shoddy and disreputable HVAC contractor installed in his home 12 years earlier. This home-owner was about to spend $20,000 on a new system and he could care less about the purchase considerations he was about to make, not unlike his experience 12 years prior, I suppose. His first lessons with the construction of his new house 12 years earlier didn’t enlighten him.

Sadly, too many consumers take the ostrich’s approach and bury their head in the sand when faced with educating themselves with HVACR purchase decisions and this leads to a couple of things: they get taken advantage of, then they are faced with the only option left if they are unable to settle with their adversary, to suit in a system that is likely not within their reach. It usually costs more to suit than it is usually worth. Consequently, unqualified and fraudulent HVACR contractors and service companies perpetuate their misdeeds for years, even decades to come.

There are 3 things consumers can do to protect themselves from the hooks of low-bidders and unqualified HVACR companies.

1. Educate oneself about the purchase one is about to make.
2. Don’t shop on low price alone, but on the demonstrable qualifications of the bidders in the process.
3. Be realistic about how much the true costs of HVACR systems and service are and not be deluded into thinking how much things should cost based on your own personal opinions and not reality.

If you follow those steps then you will unlikely end up choosing between living with a defective system or spending huge sums of money on its repair and/or a litigious case that may never see its day in court. Be smart, be sensible and be careful, as your adversary knows there is no stallion-riding, gun-toting "sheriff" who will protect you.