What was going on?
In 2013, an individual commissions his contractor to insulate the roof of his home. The contractor insulates the roof with Triso-Laine, a sheep wool-based insulation material. The contractor informs the individual that the insulation material has been treated with insecticide against pests in the insulation.
Three years later (May 2016), the individual discovers carpet beetles in his attic. The individual turns to a pest controller who suspects that the sheep's wool in the insulation is the cause of the carpet beetles. Thereupon, the individual reports the situation to his contractor in June 2016.
Pest research
The private citizen and the contractor appointed the Animal Pests Knowledge and Advisory Center(Kad) as a joint expert to investigate the cause of the carpet beetles. The Kad concludes that carpet beetle larvae can still develop in the insulation material - despite insecticide treatment - and that the carpet beetles eat the insulation material. Further relevant is that the contractor did not install the insulation material according to the processing instructions.
Contractor held liable
Based on Kad's report, the private individual holds the contractor liable, among other things, for serious defects in the insulation material. According to the private individual, a breeding ground for carpet beetles was realized in which the beetles could survive.
The failure to install the insulation in accordance with processing instructions is also significant because it allows insects to access the insulation from the outside. The individual dissolves the contract and claims damages of over €28,128.11, including €21,345.48 for the removal and installation of new insulation.
The contractor defends
The contractor claims not to be liable for the claimed damages because:
- the individual did not complain about the carpet beetles until three years after completion. Given the elapsed time, the contractor says it is impossible that the roof insulation problems would not have occurred until 2016; and
- the carpet beetles must have come from inside the home. The contractor disputes that the carpet beetles could have entered the insulation wool from the outside. In doing so, the contractor notes that it was structurally impossible to install the roof insulation in accordance with the processing instructions.
What does the judge rule?
The judge agrees with the individual!
The individual complained in time
By law, an individual is required to complain to the contractor in a timely manner at the time he discovered or should have discovered the defect. The judge disagreed with the contractor that the individual would have complained too late by not reporting carpet beetles until 2016. The judge assumes that the carpet beetle was not in the insulation material when it was installed (in 2013), but gained access to it at a later time. The individual cannot be blamed for first having research done to determine the nature of the beetle. Thus, the individual's notification in June 2016 while he had discovered the beetle in May 2016 was timely.
The insulation material is defective
The court ruled that roof insulation could be expected to be unsuitable as a breeding ground for insects unless the contrary was expressly agreed upon. Thus, there is a breach of contract by the contractor because no "conforming" roof insulation was wrongly supplied.
The court further ruled that the deficiency in roof insulation was the responsibility and risk of the contractor as a professional seller of the roof insulation. The fact that the contractor may not have known about the risk of infestation by the carpet beetle does not change this. The judge ruled that the costs of removing and replacing the roof insulation were in any case the contractor's responsibility.
In the given situation, the individual was entitled to rescind the contract and is entitled to compensation for his damages. Since not all damages had yet been properly substantiated, the individual was given the opportunity to further substantiate the damages.
4 tips for the contractor in insulation work
From this practical example, here are 4 tips for the contractor doing insulation work:
- Inform the client in writing about the properties of the insulation material used and clearly warn about possible risks (e.g. risk of insects in the insulation material);
- Make sure there is a good exoneration clause in the applicable general terms and conditions. This can limit liability to, for example, only direct damages or to a maximum of the amount of the contract sum. Note that in the case of a private client, there are strict rules for this type of clause. It is wise to have this checked by a lawyer.
- Check if the insulation supplier has a limitation of liability and (if possible) pass it on to the client. As mentioned, this is not always allowed with private parties. This may result in the insulation supplier being allowed to limit its liability towards the contractor to a great extent while the contractor is not allowed to do so in relation to the private client.
- Apply the insulation material in accordance with the processing instructions or request "backing" from the supplier if this is not possible in a particular situation.
Do you have questions about your liability in insulation work or want to contractually limit your liability? Contact Noreen Sturris using the contact form below.
