Owen Scott v. Melissa Scott, 2012 SKPC 76

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 076 Date: March 15, 2012 File: SCW25/11 Location: Weyburn _____________________________________________________________________________ Between: Owen Scott and Melissa Scott - and - Tyler Vennard o/a Vennx Carpentry Self-Represented For the Plaintiffs / Defendants by Counterclaim Self-Represented For the Defendant / Plaintiff by Counterclaim _____________________________________________________________________________ JUDGMENT K.

BAZIN , J _____________________________________________________________________________ [ 1 ] This claim by the plaintiffs is in relation to a contract with the defendant to install vinyl siding on their home, and other related renovations. [ 2 ] The following issues arise:

(1) What were the terms of the contract?

(2) Was there an agreement as to the final price to be paid?

(3) Was the work done in a proper workmanlike manner? [ 3 ] The plaintiffs’ position is that the work done was of poor quality both aesthetically as well as substantially. The plaintiffs also allege that they required R9 insulation to meet energy guidelines and obtain a rebate as to the increase energy efficiency of their home.

The plaintiffs claim that the incorrect insulation was used and that it did not bring the siding flush with the windows and doors. [ 4 ] The defence position is that the work was done properly and that if there was a problem with the installation of the vinyl siding this was caused by the weather and not the work done by the defendant. They also deny a requirement of R9 insulation use on the home.

Was there an agreement as to the price? [ 5 ] The plaintiffs in their evidence state there was a verbal contract, of which was based in part on an estimate provided by the defendant dated August 23, 2010, for the sum of $11,853.07. The plaintiffs were billed by invoice dated November 19, 2010, the sum of $8,901.19 and by a second invoice dated December 15, 2010, a further $8,883.90.

The plaintiffs and defendant discussed the invoices which were considerably higher than the estimate, and eventually the parties agreed upon the payment of $16,039.19. [ 6 ] There was disagreement between the parties as to what should have been included as extra work over and above the work set out in the original estimate and the final account. The parties had negotiated the final payment amount after discussion between themselves, with the defendant lowering the amount charged.

The plaintiffs did admit that there were items that were in addition to items listed on the original estimate and although there was disagreement as to whether or not they were to be included, because of the initial walk around, and subsequent telephone conversations with the plaintiff Owen Scott and the defendant, at the end of the day the parties agreed upon the final amount to be paid.

I find that the amount to be paid, was subsequently negotiated and agreed upon by the parties of which the amount was $16,039.19. [ 7 ] After the determination as to what the contract price was, the question arises as to what were the terms of the contract as to work to be done by the defendant. What were the terms of the contract? [ 8 ] The plaintiffs state that one of the terms of the contract was that R9 insulation was to be used. The plaintiff Melissa Scott states that the required R9 insulation was to meet the rebate requirements of the energy program through Amerispec.

The document filed by the plaintiffs (Exhibit P-11) indicates that they could receive 3.8 points if wall insulation was greater than R9. The defendant installed R7 insulation and states that the plaintiffs would not receive any additional funds in relation to the home energy grants as the requirement is to have greater than R9. The defendant states that if he would have installed R9, as far as the energy grants are concerned there would be no additional rebate. In addition the defendant filed the Saskatchewan EnerGuide for Houses (Exhibit D-8). The document shows that the rebate is calculated from R3.8 to R9.

There is a higher rebate for insulation above R9 on exterior wall insulation.

As such, I accept the defendant’s position that the plaintiffs would not have received any higher grant if R9 insulation was installed as opposed to the R7 that was installed. [ 9 ] As to the type of insulation that was to be installed, the plaintiff Owen Scott, testified that the discussion as to the insulation to be installed on the exterior of the house prior to installing the vinyl siding, was simply to be insulation of a depth such that the exterior walls of the home including the garage would be brought out so there was a uniform and even base for the vinyl siding to be applied.

The plaintiff Owen Scott testified that the garage was built with 2 X 6 construction and the house had 2 X 4 construction. The plaintiff had replaced the windows and doors in the house and had replaced them with windows and doors that were designed for 2 X 6 construction. As such, the window and door frames extended further out on the exterior side of the house. He testified that he discussed with the defendant that whatever the insulation was it was to be such to provide an even base for the vinyl siding such that the home

would have an even surface and there would be no jointing between the house and the garage. The defendant in his testimony states that this was not what was discussed. [ 10 ] I accept the evidence of the plaintiff Owen Scott that as to the exterior insulation it was simply to be at a depth that ensured there would be an even flow of siding on the house and as well the siding would be flush with the extended window and door frames that he had previously installed for the 2 X 6 construction.

I accept the testimony of Owen Scott, as the plaintiffs are spending a considerable amount of money on finalizing the renovations to their home and the fact that the plaintiffs were attempting to have a modern even look to the exterior of the home by applying the vinyl siding. This is consistent with the fact that they installed the larger depth windows and doors previously.

It is not conceivable that the plaintiffs would go through the trouble of installing 2 X 6 windows and doors in anticipation that eventually the siding would match the garage but not discuss this with the contractor who would be installing the vinyl siding. I do not accept the testimony of the defendant Tyler Vennard when he states that this was not discussed.

As such, I find that it was a term of the contract that the exterior insulation to be applied to the home was to be of a size that would allow the home to have a consistent base for the installation of the vinyl siding, and it would result in the vinyl siding being flush with the windows and doors on the home. Deficiencies claimed by the plaintiff as to the work done by the defendant

(1) Improper insulation resulting in joints and exposed window and door frames.

(2) Improper installation of vinyl siding resulting in warping and loosening and unconnecting of the vinyl siding.

(3) Improper installation of vinyl siding creating an improper aesthetic look to the home due to misaligned corners, and unfinished trim.

(4) Improper installation of soffit. [ 11 ] As set out previously, I have found that there was a term of the contract that the defendant install the proper exterior insulation for an even base for the installation of the vinyl siding. To remedy this deficiency alone the siding would have to be removed and reinstalled. [ 12 ] As to the installation of the vinyl siding and as shown in the many pictures provided by the plaintiffs and the defendant and the videotape by the defendant, it is clear that the vinyl siding is poorly installed. The vinyl siding is obviously warping, and disconnecting.

This was testified to by all witnesses including the defendant. The defendant claims that the problem is that the vinyl siding was installed in the winter, and as such it is the fault of the plaintiffs for requiring the vinyl siding to be installed in the winter. The plaintiff Owen Scott testified that when he was requesting estimates he specifically inquired if the carpenters were journeyman carpenters and the defendant advised the plaintiff that he was a journeyman carpenter.

As such, the plaintiff reasonably expected a professional job of the installation of the vinyl siding by the defendant. [ 13 ] On April 29, 2011, there was a strong wind storm in the plaintiffs’ area. The plaintiffs testified from their reviewing weather conditions in Weyburn, Saskatchewan, approximately 45 miles away that the winds were in the 56 to 72 kilometre range. At the time of 11:50 when the siding started to blow off, they testified that they understand the winds were at around 56 kilometres an hour. The east side of the house had siding blown off from the wind.

The matter was reported to SGI and SGI adjuster Brian Redderberg attended to view the damage. SGI offered to cover the east side of the building only. Brian Redderberg was called by the plaintiffs and testified that from his review of the home, the other sides of the house were not damaged by wind but upon his inspection he noticed that there were several places where the siding was loose and not latched into the piece of siding below.

He testified that in his opinion it appeared the siding was installed during cold weather and in the summer the vinyl siding expanded and the expansion is causing the siding to unhook from itself. He stated that the cause of the loose siding was a result of an installation problem. [ 14 ] Mr. Redderberg’s opinion has to be taken with the understanding that he is representing the insurer and that if it was found to all be wind damage the insurer would have to pay the cost of the replacement of the siding. He did however personally attend the plaintiffs’ home twice.

He stated that in his view it was not being torn off from the winds, but it was an installation problem, but once it became loose the wind tore the siding off. SGI agreed to cover the east wall, where siding was torn off, but would not cover any other walls of the home as their position was that it was due to installation. He testified that when he pushed the siding together it would hook and snap back in, however even while he was still inspecting the home he could hear snaps and noticed that the siding had unhooked again.

He estimated forty to fifty percent of the siding was loose on the upper west side of the two-story portion of the house. He

indicated on the west lower wall of the first story the siding was not connected to the house and in spots he could pull out the siding up to one inch. He tested seven or eight places randomly on the west wall. On the east side as to the starter strip he ran his finger under the edge and could not feel any nails around a 30 inch area. Mr. Redderberg attended the home on two occasions to review it. He indicated on the balance of the house there was no tearing or pulling out of the vinyl siding nails. In his opinion from his observations he stated it was an installation issue. Mr.

Redderberg has worked with SGI claims for 31 years and since March 1995 in general claims. [ 15 ] The plaintiffs also called as a witness Danny Lee, a representative of Gentek Building Products. He has been an installer of vinyl siding for 20 years in the construction industry and had a renovation company and has dealt with window and vinyl siding for over 20 years. He also inspected the home. He stated that the problem was the installation, that the vinyl siding was not locked together with the specialty zip tool.

Some of the vinyl siding was not overlapped long enough such that when the vinyl siding shrunk and expanded, it would catch the lip of the siding beside it and then start to buckle. He entered the Gentek vinyl product installation guide which is provided to parties with the installation and also available online. It is of note on the first page, third paragraph, underlined and written in bold, “ vinyl expands and contracts with changes in temperature” . It states that is why the vinyl siding has nailing slots and nailing instructions are provided.

On page four, basic rules, it outlines that the nails are to be in the middle of the slots, never nailed through the material and never nailed too tightly. It states that vinyl siding is not nailed to the wall but it is hung on the nails allowing the free movement of each panel. [ 16 ] From his inspection Mr. Lee indicated that the corner posts are nailed too tight, there are observations and pictures of nails straight through the siding. Mr. Lee stated that in normal installation, the nails are to be 16 inches apart and in high wind areas the nails are to be 8 inches apart.

This is also stated in the installation guide. He stated in his observations there are areas where the vinyl siding is not nailed on 16 inch centres being that the nails are further apart than 16 inches. He testified that the grade of vinyl siding was the lowest grade 4.5 but indicated that it is not more susceptible to damage as it also has a lifetime warranty. He testified that he has not come across issues with this type of siding. He testified the problem was that there were not enough nails and that some nails are too tight.

There was no evidence by any party as to whether the plaintiffs’ house is in what could be described as a windy area. It would however be the responsibility of the defendant to determine if the plaintiffs’ home was classed to be in a windy area requiring 8 inch spacing. As there was no testimony to this effect, I do not find that the vinyl siding was required to be nailed at a spacing of 8 inches. The evidence, and I find, is that there was evidence that the vinyl siding was not nailed 16 inches apart throughout the home.

The defendant produced evidence that the vinyl siding was 16 inches apart and the defendant showed evidence that in locations it was not 16 inches apart. [ 17 ] The defendant testified that he has installed numerous vinyl siding installations, but had never installed vinyl siding in the winter before. In argument he proposed that the problem is that the vinyl siding was installed in winter. The defendant did not advise the plaintiffs that the vinyl siding could not be installed in winter in any event.

The evidence filed, particularly the Gentek installation guide, and the testimony of Danny Lee, is that vinyl siding can be installed in any time of the year as it is specifically designed to expand and contract and the installation guidelines specifically refer to this. The defendant also took pictures of the home and showed in certain areas that the nails were within 16 inches. [ 18 ] It has also been noted that the defendant had an assistant working for him, and as such the defendant was not the only one personally working on the home installing the vinyl siding.

The testimony by the plaintiffs was that they were advised by the defendant that the assistant had quit and had stolen the defendant’s tools and this caused a delay in concluding the installation of the vinyl siding as the defendant had to go through his insurer to replace the tools. The defendant did not provide information as to the qualifications of this employee, or as to any review of his work done. [ 19 ] Considering all the evidence I find that the plaintiffs have shown on a balance of probabilities that the vinyl siding was not installed properly.

It is visible to anyone looking at the photos and video that there is warping, unhooking and improper spacing of the vinyl siding. The plaintiffs contracted the defendant to do a proper job, relying on the fact that he was a journeyman carpenter, and had experience in installing vinyl siding. I find that the siding problem was not caused by the wind or the temperature when the siding was installed. The Defendant never returned to look at the siding in response to any of the Plaintiff’s complaints, including the issue with the siding blowing off.

Aesthetics of the vinyl siding [ 20 ] In addition to the warping of the vinyl siding, the vinyl siding is not installed according to the installation guide, and not installed in a proper aesthetic manner in that the siding on one wall does not line up with the siding on another wall. This is observable on the corners of the home and also on the connection between the house and the garage. This gives the home a patchy and uneven aesthetic look. This is particularly true of the connection between the garage and the home. The plaintiffs had testified that they wanted

the installation such that there could be a continuous seamless coverage of the garage and home. In addition to this not occurring because of the improper insulation installed, the problem is made more noticeable by the seam strip that is installed between the garage and the house. The vinyl siding is misaligned so there is not only a definitive joint between the house and the garage but the siding being unaligned makes it more noticeable and gives the house an unprofessional look. Improper installation of doors [ 21 ] The plaintiff testified that he had to redo the garage man door as it was improperly installed.

The door would not work properly. I find that the door had to be repaired by the plaintiff to make it work properly. Conclusion [ 22 ] The plaintiffs have proven on a balance of probabilities, the improper installation of the vinyl siding, and breach of terms of the contract which include that the insulation was to be of a sufficient depth to provide a new even base for the vinyl siding to be installed. In addition, they have shown on a balance of probabilities that the installation of the soffit is not done in a proper workmanlike manner and the man door on the garage had to be retrofitted in order to work.

Throughout the testimony and evidence filed, there is additional matters relating to the improper installation of the vinyl siding, but for all intents and purposes they are moot as the remedy is that all the vinyl siding has to be removed and installed properly. These additional items deal with the siding not covering the whole home down to the cement as well as trim concerns in relation to around the doors and windows. The siding has to be removed to put in the proper insulation in any event. It also has to be removed to realign the siding and also to have it properly installed.

Any one of these items requires the removal of the siding. [ 23 ] In addition the defendant did not satisfactorily install the soffit, which will require a trim on them to make a finished look to the soffit installation. Damages [ 24 ] The plaintiffs received three quotes to repair the home. The highest quote if $17,970.97, then $14,196.00 and the lowest is $12,500.00 but adding taxes is estimated at $13,750.00. SGI indicated they would cover the east wall and they would pay $4.76 per square foot. The plaintiffs’ documents show that there is 2,166 square feet to be covered.

This would calculate to $10,310.16 for the plaintiffs’ home before taxes. SGI’s figures give us another measure to determine the reasonableness of the three quotes. The calculation of SGI’s amounts are for removal and installation of the siding only. [ 25 ] There also is the need to replace and/or increase the insulation on the home in order to form a proper base for the vinyl siding as well as to repair the garage man door and the soffit. The lowest quote of $12,500.00 plus taxes does not cover the installation of the required insulation.

As such the quote from South Central Renovations of $14,196.00 covers all items that I found are required to be repaired due to the improper installation of the vinyl siding. [ 26 ] The highest quote referred to reusing as much siding as possible. The two lower quotes do not specifically refer to salvaging of the existing siding. When reading the three quotes, in particular South Central’s quote which I find is a realistic amount, to repair the siding, the quote states $2,600.00 for removal and reinstallation of the siding.

This appears to include salvaging the siding as SGI allows $2.49 per square foot for siding costs which would place the cost of the new siding over $5,000.00. The quote by South Central Renovations also refers to installing window clads and door clads, and this is a proper item as this is the cladding that goes on the windows and door once the siding is brought up to the proper level. [ 27 ] From the amount of $14,196.00, a portion will be covered by SGI.

SGI will pay $3,086.32, however the plaintiffs have a deductible of $1,000.00 and the question is whether or not the plaintiffs should be given credit for the amount SGI is paying less the deductible.

[ 28 ] In the circumstances, the siding on the east side of the home would have to be removed and replaced in any event due to the improper installation. As such the plaintiff will obtain the benefit of the amounts being provided by SGI, however they will not receive the full amount, as this would benefit the plaintiffs by requiring the defendant to pay the deductible. As such, from the amount of $14,196.00, the amount to be paid by SGI being $2,086.32 will be deducted. [ 29 ] The order will be that the defendant shall pay the plaintiffs the sum of: (a) $12,109.68; (

b) cost of summons $100.00 (

c) total $12,209.68 (

d) prejudgment interest of $12,109.68 from February 12, 2011 to date of judgment. Counterclaim [ 30 ] The defendant brought a counterclaim as against the plaintiffs for the sum of $2,338.00. The claim is basically their costs in relation to attending Court and preparing for the trial. This claim is dismissed, as it is a claim for costs. Dated at Weyburn, Saskatchewan this __14th____ day of May, 2012. K. Bazin, J