Month: September 2018

LEARN HOW TO AVOID EXPENSIVE LAWSUITS
START TURNING NEGATIVES INTO POSITIVES
DON’T BAIL-OUT, SIMPLY PATCH THE HOLES

A Case In Point
Mr. and Mrs. McDowell of San Diego, CA contracted with a local pond liner construction company and paid them $255.000.00 to construct a pond and waterfall in the front yard of their $14,000,000.00 home. In less than 6 months from the completion date of the project, the pond started losing well over 150 gallons of water per day.

The contractor was informed of the situation and responded immediately by arriving at their home to inspect the water feature. The contractor walked up the hill, inspecting the waterfall very carefully and then back down the opposite side and without hesitation, exclaimed that they had an infestation of rats and gophers living under the waterfall portion and had chewed holes in the liner. The owners instantaneous response was,…and?, to which he retorted, “…didn’t you read the small print in your contract?…that the liner was only covered for factory defects in the liner, not for holes chewed by rodents.

Now, for the rest of the story… The “fit to be tied” McDowells hires a second liner company to come and patch the leaks for the sum of $75,000.00. Because the liner had many two ton to 5 ton boulders sitting on it than were put in place by a 50 ton crane, there was no way to check every square inch of the liner so these pond liner construction experts spent two weeks painting around the base of every rock in the waterfall with Thoroseal, which not only looked ugly, but the falls were leaking worse than before within less than 6 weeks.

The second company was down the road with their $75,000 with the same flimsy excuse that they couldn’t guarantee the gophers wouldn’t come back! The Owners sued the original contractor and won on the grounds He did not disclose all of the potential pitfall associated with the rubber liner.

Liabilities Associated With Pond Liner Construction

1. Regardless of what the contractor may think, he is subject to a libel suit if he does not correct any leaks in the pond liner, if resulting from anything other than by the fault of the customer. In most cases, if a liner leak is discovered early on, before the escaping water can cause any damage, there is unlikely to be any major consequences. However, it is a common practice in the industry for less than reputable contractors or pond builders without a license, to simply add an auto fill device in order to solve the leaking water problem. As a result, the client is oblivious to the fact their pond is leaking because the auto fill float is restoring the lost water, resulting in a ongoing saturation of the surrounding area.

2. There is a high probability that a liner will suffer a leak within the first two to 12 months as a result of poor craftsmanship, improper installation or simply from the heavy weight of the rocks puncturing the liner.
More than 33% of all waterfalls have serious structural damage within 3 years of its construction.
57% of homeowners say they’re rather unsatisfied with the way their waterfall turned out- when the project was completed.
Nearly 1 in 3 waterfalls and ponds are leaking within 9 months of completion.
27% of all outdoor waterfalls and ponds have pumps that are mismatched for their applications, creating unnecessary expenses later on..
63% of “Do-it-yourselfers” said they wish they had the proper information from the beginning or they wished they had hired a professional.

3. Due to the nature of the liner, it is next to impossible to find a leak without removing all of the rock from the waterfall and pond, which may be cost prohibitive, resulting in many pond liner contractors simply not addressing the situation. The result being a law suit, bankruptcy, and or a bad blemish on the pond liner industry. If the auto fill is turned off and the pond is allowed to leak, the water level will eventually settle out at the exact location of the leak. If the waterfall is turned off and the water level does not change, the conclusion is that it is the waterfall that is leaking, not the pond. This process quickly determines the general location of the liner leak.

4. Many times, a liner failure due to rats, mice, gophers, ground squirrels, chipmunks, etc may affect the surrounding areas, resulting in water damage to property. Flood damage to neighbor’s property, and in several cases in California, resulting in the undermining of the houses foundation footings or cracked patios and flooded basements.

The greatest drawback to filling your pond with a garden hose is the frequency of overflows and flooding associated with getting preoccupied with other tasks and forgetting to turn off the hose. “Water damage and homeowner policies can be a volatile issue in many says Don Griffin of the National Association of Independent Insurers, a trade association for property-casualty insurers. Swimming pool, ponds, spa and hot tub overflow is one of the top ten causes for home water damage claims with many insurance companies. Chief among the cause of overflowed pools, spas and hot tubs is forgetting to turn off the hose when filling, or malfunctioning mechanical float control systems. These are nothing more than common toilet tank floats (Fluidmaster) which often malfunction and will not shut off as they were designed to, resulting in an overflow and possible lawsuits from neighbors.

5. Unlike concrete and rebar ponds, using mortar to secure the rock to the concrete shell pond liners are often covered with loose rocks and boulder, since it is difficult to cement rocks to rubber liners. This condition sets up a serious liability from the injury of children and or adults climbing on loose boulders, resulting from injury or even drowning.

6. Since liners need to be cut to facilitate bottom drains and skimmers, the chance of leaks are increased from the additional loss of the watertight integrity of the liner.

7. Since liners are prone to failure from so many causes, the exorbitant cost of maintenance and repairs can become insurmountable. Leak problems alone have resulted in the failure of many pond liner businesses.

Summary
To reduce misunderstanding about the integrity of pond liners and the possibility of the customer being accidentally mislead by the degree of liners reliability, a disclaimer should be added to protect the pond liner contractor from liability. It should state clearly that the warranty only covers factory defects in the liner.

In addition, the disclaimer should point out that the liner is subject to developing leaks from gnawing rodents such as mice and rats, also ground squirrels, gophers, chipmunks, claws from dogs, raccoons etc. Also punctures may result from sharp objects, including heavy boulders sitting on the liner. It should also be noted to the client that even though a concrete and rebar pond costs about 20% more, it will last many years or even decades longer than a liner pond. Besides adding this disclaimer to the contract, you should also read it to them.

Furthermore, even though it may cost an arm and a leg to find and repair certain leaks, doing so is better than ending up with a lawsuit or irate customer. “Don’t bail-out, patch the hole.”

Don’t be opposed to offering your customers a waterfall and pond constructed with rebar and concrete, then you won’t need to ever worry about patching holes. If they say no, at least you gave them the option.