Masonry Magazine January 2011 Page. 37

Masonry Magazine January 2011 Page. 37

Masonry Magazine January 2011 Page. 37
Fraud Claims: Promises Made, Promises Broken

Ultimately, avoidable claims. A contractor can keep broken promises and disappointed expectations from turning into fraud claims by recognizing some key traps for the unwary.

Fact, opinion and the "fraudulent promise"

Fraud depends on a misrepresentation of a fact, not opinion. For example, "The house is in good condition" and "My services are high quality" are opinions, while "The house was built in 1989" and "I have a Class A Virginia contractor's license" are expression of facts. An opinion is subject to interpretation, while a statement of fact is either correct or incorrect.

Performance issues pose other opportunities for confusion. While a party's simple failure to perform a contract is not fraud by itself, the equation changes where a party makes a promise with no intention to try to fulfill that promise in the future. While this type of claim is often difficult to prove, courts have looked to circumstantial evidence, such as failing to apply for a permit, lack of communication with the customer, and requesting advances for completion of work that the contractor never completes.

How to reduce risk

A contractor can do much to reduce the risk of fraud claims by preventing misunderstandings and disappointed expectations. A few key points:

* Avoid making unrealistic promises
* Maintain regular communication, and confirm any "fact" before relaying it to the customer
* Avoid opinions that may be misunderstood as "facts," such as, "I am the top contractor in my area." Even if such a phrase is an opinion about quality, a customer who understands it as an untrue representation about sales volume or years of experience can present a worrisome problem in a courtroom

www.masonrymagazine.com

Misunderstandings happen, so remember to document key conversations with the customer, and confirm the customer's understanding and expectations in writing before the job moves forward.

While a failed contract is never a good thing, the right precautions can help prevent unfulfilled promises from morphing into something even worse. IMAS William Groh is an associate with Bean, Kinney & Korman and can be reached at wgroh@beankinney.com.

2 A party that misrepresents a fact "negligently" or "innocently" may be liable for "constructive fraud" or negligent misrepresentation instead "actual" fraud. This article does not address constructive fraud. Constructive fraud carries the same risk of personal liability as actual fraud, but courts generally do not award punitive damages for constructive fraud.



Don't let anyone tell you it's not heavy!

Work Smart-Demand SmartWall

* 1/3 less weight
* Protect your workforce
* Lower workers compensation claims
* Improve ergonomics
* Increase productivity

SmartWall Systems is a concrete masonry wall system that outperforms other masonry and non-masonry wall systems, especially in terms of weight, energy efficiency, maintenance, appearance, fire resistance, durability and strength.

www.escsi.org/mason.htm


Masonry Magazine December 2012 Page. 45
December 2012

WORLD OF CONCRETE

REGISTER NOW; RECEIVE A FREE HAT!
The first 25 people to register this month using source code MCAA will receive a free MCAA Max Hat (valued at $15.00)! The MCAA Max Hat features a 3D MCAA logo embroidered on front with a

Masonry Magazine December 2012 Page. 46
December 2012

Index to Advertisers

AIRPLACO EQUIPMENT
888.349.2950
www.airplace.com
RS #296

KRANDO METAL PRODUCTS, INC.
610.543.4311
www.krando.com
RS #191

REECHCRAFT
888.600.6060
www.reechcraft.com
RS #3

Masonry Magazine December 2012 Page. 47
December 2012

AMERIMIX
MORTARS GROUTS STUCCOS

Why Amerimix Preblended Products?

576

The choice is CLEAR:

Consistency

Labor reduction

Enhanced productivity

ASTM - pretested to ASTM specifications

Masonry Magazine December 2012 Page. 48
December 2012

MASON MIX
Type S Mortar
QUIKRETE
www.quikrete.com
800-282-5828

MASON MIX
Type 5 Mortar
COMMERCIAL GRADE
QUIKRETE

Our mortar mix on Vail's Solaris was so consistent, every bag was like the next. And the next