Fair Business Practices Act, Fraud
In Marrale v. Gwinnett Place Ford, the Court of Appeals helped to clear up some earlier case law that had treated used car sales at dealerships as "private transactions" outside the scope of the Fair Business Practices Act FBPA). Consumers and their lawyers who seek to use the FBPA should carefully review this case, and develop evidence of all advertising, marketing and promotion that led the consumer to enter into the transaction with the defendant, in order to put that transaction in the context of the defendant's activity in the consumer marketplace. See text below.
The Shigley Law Firm represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a "SuperLawyer" in Atlanta Magazine and one of the "Legal Elite" in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks).
I just got into blogging and I absolutely love it, so thanks, I keep track of this blog as well as 5 others so far.
Consumer issue under Georgia's Fair Business Practices Act of 1975
Do mass mailouts to consumers advertising Home Improvements, siding and windows sent through the mail in the form of post cards to consumers promising "Satisfaction Guaranteed" "Insured" "Quality Work" make it a consumer issue under the FBPA? [NOTE FROM KLS: The advertising helps satisfy one of the requirements of an FBPA suit.]
What if then in the end after being induced to contract by these claims and other claims in a contract it turns out that the company is not insured, does shoddy work, cares nothing about your satisfaction, and never intended to fulfill the terms of contract? What if it can be shown they have done this to others and will likely continue unless stopped? [NOTE FROM KLS: All that helps support an FBPA claim. The lack of insurance worries me, though, because you have to be able to recovery money from somebody.]
What if in the consumers attempt to fix the shoddy work he is injured? Is there room for an injury claim under FBPA or is that a private issue? [NOTE FROM KLS: The FBPA does allow for a personal injury claim. I am apparently one of the few lawyers in Georgia to have successfully litigated that theory of liability. However, the defense would be that there was was a break in the chain of proximate causation when the consumer took it upon himself to do repairs and was injured, not by the shoddy workmanship itself but by something else that arose during the repair job. I think the proximate cause defense might work.]
How about if the contract calls for work to be done in strict compliance with all rules, regulations, and ordinances and then no permits are obtained and the work does not pass inspection? The work done is unsafe and the contractor claims not to be subject to the building codes (because he does not actually do the work) and says he doesn't care what the inspector says. Does this make it a consumer issue? [NOTE FROM KLS: Among other things, yes.]
How about when the contractor does a "bait & Switch" on the windows, claiming the original window he was showing are no longer available and replaces it with an inferior window at the same price? Is that a consumer issue? Clearly its fraud since the original window is still available and the reason the switch was done was so the contractor could order a cheaper window, one that does not come automatically with argon gas which is invisible. Since a consumers would not be able to know, unless they were paying attention to the labels on the window products before they were removed by the installer, its a risk worth taking by the contractor, besides he can just claim its a mistake. Is this a good claim under the GAFBPA? [NOTE FROM KLS: In a word, yes.]
If all this was known up front, no one in their right mind would have signed a contract with this fellow. Then to make matters worse, the contractor can just sick his "pro bono attorney" Wife on the consumer so its not really costing him anything. She of course has a vested interest in keeping his "Fraud" away from being heard by a Jury and that effects her judgment which causes her to use intimidation tactics instead of making a good faith effort to get to the merits of the claim which any reasonable attorney would have done after reading the 3 certified letters the consumer wrote the contractor. But she can always claim she knows nothing of her husbands day to day business, and besides that's protected by spousal privilege/attorney client privilege. [NOTE FROM KLS: Wow!!!]
Then contractor slaps a lien on the house, sues for breach of contract, because the consumer refuses to pay for shoddy and unsafe work and where does that leave the consumer? How is a consumer to repudiate a contract that you cannot give the stuff back on? Isn't he better off trying to enforce the breached contract?
Well, Consumer Affairs now can't get involved because its considered a civil matter, which leaves the consumer to have to fight it out in court. Consumer can't get assistance from the District Attorney because the consumer was not victimized enough, because he did not pay money yet.
But now the consumer has this spinal injury, with major medical bills, no insurance and cannot afford an attorney! His house has defective and unsafe work with a lien on it, the county wants to cite him for the code violations and make him tear out all the work, and the contractor gets to go on business a usual. Isn't this just the kind of thing the "Fair Business Practices Act" is for?
What can this consumer do now but fight for the protection of all other consumers who would be victims of these unfair and deceptive business practices all by himself ! Do you think a judge will let this go before a jury by a pro se defendant? Not likely, he will be forced to settle and the consumers of the state of Georgia will be no better off and that is a shame! Anyone out there got a better idea?
