ALJDEC

01F-T0418-ROC · Registrar of Contractors · 2001-06-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 19, 2001; at 1:30 p.m. APPEARANCES: The Complainant appeared on her own behalf. The Respondent appeared through its attorney, Sally Darcy. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Respondent is the holder of a Class B-04 License issued by the Registrar of Contractors. 2. The Respondent installed a new water service line near the Complainant’s residence. The new water line failed and a portion of the water from the failed water line damaged the Complainant’s landscaping and residence. 3. The Complainant immediately notified the Respondent and the water company of the situation. 4. Credible testimony and evidence, presented at hearing, established that the Respondent responded promptly to Complainant’s notice of claim and that the Respondent retained a contractor (PureFirst) which specialized in this type of repair and that PureFirst promptly contacted the Complainant to gain access to her residence to perform restoration work and that corrective action proceeded until the parties became involved in a dispute regarding the amount of damages that were caused by the failed water line and the amount of restoration work that was needed. 5. When the parties were unable to resolve their dispute regarding the extent of damages caused by the failed water line, the Complainant filed a civil action for damages against the Respondent and a formal complaint, against the Respondent, with the Registrar of Contractors. 6. Pursuant to the filing of the formal complaint, an assigned Agency Inspector conducted an on-site inspection and issued a written corrective work order directing the Respondent to perform designated corrective work on the Complainant’s residence. 7. Prior to the scheduled hearing, the parties settled their civil suit. The terms of the parties’ settlement agreement were set forth in a letter from Respondent’s attorney (Exhibit No.1 herein) where the attorney stated, in pertinent part, as follows: “As part of this settlement, your client (the Complainant) reserves the right to proceed with the Registrar of Contractors in order to air her grievances with regard to her feelings that Com-Pac failed to timely respond to her complaints…” 8. There was no dispute that the Complainant had, in fact, received the stated monetary settlement from the Respondent and that the Complainant was not seeking any type of remediation or repair work from the Respondent. 9. The parties’ dispute regarding the extent of damages is found to have constituted a good faith dispute, by all of the parties involved, and that the good faith dispute has now been settled by the parties in a civil court of competent jurisdiction. 10. The credible testimony and evidence of record established that the Complainant was very upset with the fact that the Respondent disputed the amount of damages caused by the failed water line. However, the amount of damages was settled in the parties’ civil matter. The only issue reserved in the settlement agreement was the timeliness of the Respondent’s response to her claim for damages. 11. The credible testimony and evidence of record established that the Respondent responded to the Complainant’s claim in a prompt and timely manner. The credible testimony presented at hearing established that the Respondent responded to the claim within hours and that PureFirst was contacted within 24 hours and that PureFirst contacted the Complainant and scheduled a date to perform restoration work at a date acceptable to the Complainant within two weeks of the incident. 12. Although Complainant’s concerns, frustrations, and aggravation regarding the problems she experienced as a result of the failed water line, construction work, such as that at issue herein, is not a perfect science and water lines do occasionally fail and the contractor involved is then required to remedy the situation caused by the failed construction work. However, a licensed contractor is not precluded from contesting the amount of damages caused by its failure so long as it is a good faith dispute. 13. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The credible evidence of record established that the Respondent responded to the Complainant’s claim for damages in a timely manner. 2. The credible evidence of record failed to establish any violation of the charged provisions of A.R.S. §32-1154(A) regarding the timeliness of Com Pac’s response to the matter at issue. RECOMMENDED ORDER In view of the foregoing, it is recommended that Citation No. T01- 0418, together with the complaint upon which it is made, be closed. Done this day, June 29, 2001.

________________________________ M. Douglas Administrative Law Judge

Original transmitted by mail this ____ day of June, 2001, to:

Phyllis Biedess, Director Arizona Health Care Cost Containment System ATTN: Margaret Leigh 701 East Jefferson Phoenix, AZ 85034

By _______________________________

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Office of Administrative Hearings 100 N. Stone Ave., Suite 704 Tucson, Arizona 85701 (520) 628-5488