re: "So evidently I was right..."
When were you right? When you said "Lowes Blows" or when you said that Lowes was responsible for the damage to your driveway?
1 - If they make you an an offer that satisfies you, then you were wrong in saying that they Blow.2 - If they make you an an offer that satisfies you, then you may still be wrong in claiming that they have hold any fault in the issue. A "settlement" isn't an admission of fault, it could just be a good- will thing to do. See # 1.
Well, that's good enough for me. I'll only shop at your HD because every employee knows where everything in the store is located.
When they first disclaimed responsibility, especially after showing me their contract with the supplier I was pissed. But after much discussion Lowe's saw my point of view. Whether they assume the 'fault' or subrogate against the vendor is not my business. Whether they are doing this to satisfy a customer is my business. I've done enough business with them that I deserve to be satisfied. And why was I right? They would not have that clause in their merchant contracts if they were not responsible, either legally or morally to their customers.
We had the same problem with that stuff at work. Problem is it damaged just some section of the concrete, pieces that had been replaced at one time, and not others. This would indicate that the quality of the concrete, sealer, or workmanship was also involved. Lots of luck with sorting it all out. I put out 10,10,10 fertilizer before it freezes over. Melts the ice, doesnt hurt anything. If I dont get it out in time I just put it over the ice for traction.
Jimmie
The offer is being made for you to go away so they can end the issue. Your cement work must have a certain degree of defectiveness. I am in southeastern Michigan with climates much harsher than the Carolinas. Localities use salt to clear the roads of snow in the Winter. 56 years of salt and my parents driveway and side walks look like new as well as the rest of the cement work around here.
If your case does end up in court, Lowe's will have a corporate person argue their side of the case. No lawyers are permitted in Small Claims Court in Michigan, perhaps the same is true in your area, but the person arguing Lowe's case could very well be a corporate attorney. Small Claims are filed against retail stores all the time, please do not feel that you case is the first one filed against Lowe's. Your case is frivolous.
And I've lived in the North for 60 years before moving here so:
so I think I know a little about concrete. And the case is not frivolous. And lawyers for a Corporation are permitted in most small claims court. And if Lowe's felt no responsibility for products they sell, they would have that 'hold harmless' clause in their vendor contracts and would not threaten the vendor with a legal suit for not upholding their end. Regardless, as long as Lowe's takes care of the problem I don't care if it's just to 'make me go away' or if it's their corporate responsibility that makes them do it.
Actually there was a similar case on Peoples Court last year. Someone ordered a dish that had pitted olives in it. One of the olives contained a pit and the customer broke a tooth on it. They sued the restaurant and....they LOST. The judge said to prevail the plaintiff would have to show that the restaurant was negligent and did something wrong, which they did not. The judge said they might have a claim against the olive maker, but even then, everyone should know that it's not possible to guarantee 100% perfect removal of all pits.
Because they want manufacturer's to offer some reasonable guarantee of their product so that Lowes customers will have some recourse if the product doesn't live up to the guarantee. It's just good business practice. However, that does not mean that every manufacturer has to agree to every claim. It's not at all unusual for a manufacturer to look at a claim and say that the failure is not due to their product, but instead another factor. How many people do you think come back to Lowes and bitch because the paint they bought and put on the outside of their house is peeling? It could be the paint, but far more likely it could be the prep work, primer, conditions during application, etc.
What specifically did the manufacturer of the melting product say about your claim? What was the chemical in it? As I posed before, I did a quick google on what is the best ice melting product for concrete and found many references from sites with no apparent dog in the fight that said that the real factor at work is the concrete itself. If it's good concrete properly poured, it doesn't make any difference which particular melting product is used. The spawling you can get is due to the increased freeze thaw cycles that result when you use any of these melting products.
I repeat for the umpteenth time: The manufacturer states it's safe use if:
a. the concrete is at least one year old. b. the concrete is sealed.
The concrete is 5 years old. I've used ice melt on this driveway every year without mishap. I personally sealed the driveway twice. I was here when the driveway was poured. Specs called for a 2500psi mix. The mix that was delivered bright and early in the morning (so as not to sit in the truck for hours) was over 3000 psi.
Actually there was a similar case on Peoples Court last year. Someone ordered a dish that had pitted olives in it. One of the olives contained a pit and the customer broke a tooth on it. They sued the restaurant and....they LOST. The judge said to prevail the plaintiff would have to show that the restaurant was negligent and did something wrong, which they did not. The judge said they might have a claim against the olive maker, but even then, everyone should know that it's not possible to guarantee 100% perfect removal of all pits.
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That's an interesting PL case. I've heard the same thing about "fish bones". Unfortunately, the plaintiff can't sue God. I'll bet they could if they could serve a subpoena. (St. Peter's Square? Sistine Chapel?)
Our court system is out of control but thankfully there are some glimpses of sanity.
Cool! Please let us know. :-)
Post a copy of the actual letter so we can read and make our own determination. I'd like to see that "purchase agreement" too.
Thanks
In real life they go after everyone who has assets because they think their job is to transfer as much wealth as they can to themselves. It only costs them whatever they pay their staff to do the research as to who has assets and how they can get them, the filing fee and a little extra court time. They have already done all of the other work.
That is standard practice. They are more than willing to spend the relatively small cost to have their staff investigate who else can be named and determine what assets they have. Even if they only pick up an extra 20, 50 or 100k on that part of the action it is money well spent.
Maybe mute at this point but, can you prove it? Do you have documents to back it up?
Jim
For the third time here is the paragraph. Lowe's will not give out an actual copy of their merchant agreement.
""I direct your attention to the Master Standard Buying Agreement, executed between your company and Lowe's. Please refer to Article V, WARRANTIES AND GUARANTEES, sec (5) which contains the following indemnification agreement. Pursuant to this agreement your company is responsible for this matter. Your company is responsible to Lowe's for the defense and indemnification of any and all claims, including expenses and legal fees resulting from this matter. Lowe's will exercise all available legal remedies to enforce this agreement Failure on your part to respond to this may result in additional expenses, as well as legal action being taken against your company. Lowe's therefore demands immediate acceptance of this claim in writing. If you have any applicable liability insurance coverage for this matter, you should immediately place your insurance carrier on notice." "
As a matter of fact, I do. And if and when I go into court, which I doubt I have to do, I can show 40 years of construction supervision to prove I know what I'm talking about. As I said before, my family is in the construction business (skyscrapers, malls, hospitals, etc.) for many, many years. I'm retired quite awhile but I can pick up the phone, have one of our engineers fly down, take a core sample and have it analyzed to prove my point.
How could they prove the sealers were applied? Maybe having the receipts would help. Or the left over containers. Ehhh. Like you said, I doubt it will go to court. I just find this stuff interesting. Is that "purchase agreement" or "lowes product guarantee" available on line and do you have access to a scanner? I'd really be interested in reading.
Jim
sorry! :-) Thanks
Again, you haven't read my posts. Lowe's will not give out a copy of the merchant agreement. The reason I have that paragraph is that Lowe's insurance company sent it to me to show me that they are actively going after the vendor.
Good golly, there are a lot of people commenting in this thread who don't seem to have a clue about how our legal system works but think they do anyway.
When a merchant sells you a product, there are implied warranties of merchantability and fitness for purpose. These warranties apply unless the merchant explicitly disclaims them. In some jurisdictions they cannot be disclaimed (i.e., the merchant is stuck with them whether he likes them or not). These warranties apply to the merchant who sells the product,
*not* to the manufacturer. If the product is sold in a chain of transactions (e.g., manufacturer to distributor, distributor to merchant, merchant to consumer), there are implied warranties at each link in the chain between the two parties to that particular transaction.Merchantability applies here because the product failed when used as intended and in accordance with its published instructions.
Fitness for purpose applies here because the product's instructions claimed that it would perform adequately and it did not, and because the purchaser asked the merchant specifically if it would perform as desired and was told by a representative of the merchant (i.e., the Lowe's associate) that it would.
The OP does not have a contract with the manufacturer of the product, because he did not buy the product from the manufacturer. The OP has a contract with Lowe's, because he bought the product from Lowe's, and therefore the implied warranties at the OP's disposal for recouping damages for his loss are with Lowe's not with the manufacturer.
If, indeed, the manufacturer of the product was negligent in selling a product which they claimed would be safe for concrete when used in certain conditions and which was not in fact safe for concrete when used in those conditions, then the OP could have a claim against the manufacturer for negligence, independent of the implied warranties between Lowe's and the OP.
In short, if the facts are as presented by the OP (i.e., his concrete was old enough and sealed properly, the product said it was safe to use on concrete that was old enough and sealed properly, and yet the concrete flaked when the product was used on it), then he can certainly sue Lowe's for damages based on the implied warranties of merchantability and fitness for purpose, and he can also, should he wish to do so, sue the manufacturer for negligence.
It appears from the information provided by the OP that Lowe's has its own contract with the manufacturer which allows Lowe's to force the manufacturer to cover any claims for damages arising from its products sold by Lowe's. That's all well and good for Lowe's, but it has nothing to do with the OP, who is not a party to that contract. It is not the OP's concern whether Lowe's can or does successfully collect reimbursement from the manufacturer for whatever damages Lowe's pays out to the OP, and the contact between Lowe's and the manufacturer cannot be used as the basis of a lawsuit initiated by the OP against either Lowe's or the manufacturer. Frankly, I'm not sure why Lowe's showed it to the OP; it just muddied the waters.
See
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