June 19, 2020 by Greg Meckbach
For want of a wrench, the basement was lost. This would be one way of summing up the Provincial Court of Alberta’s ruling in Kuerbis v Broderson, which should provide food for thought to brokers placing coverage for commercial clients who deliver washing machines to homes and also install them.
In Kuerbis, Justice Paul Pharo awarded nearly $28,000 to John Kuerbis and Janice Sanford, a couple who sued Brent Alan Broderson operating as Chinook Delivery & Moving, which often delivers and installs washing machines. The Lethbridge homeowners are 30% liable for their own basement flooding, Justice Pharo ruled.
In September 2017, the couple bought their washer and dryer from a store that arranged to have Chinook bring the appliances to the couple’s home.
Originally, Kuerbis had planned to install the appliances himself. But he suddenly had to travel on business. Sanford was home the day of the delivery. So she hired two employees of Chinook, on the spot, for $30, to install the appliances. Sanford left for work shortly after the delivery and when she returned from work later that day, she discovered water had leaked into her basement, which includes a bathroom and office. The extensive restoration job, as explained by the court ruling, included repairing and replacing drywall, removing laminate flooring, replacing a couple of interior doors, detaching and resetting the sink and toilet, among other jobs.
The homeowners argued Chinook was liable because the hose supplying water to the washing machine was not properly connected to the tap in the laundry room. For its part, Chinook argued the hose supplying cold water to the washing machine leaked because the appliances did not come with a rubber washer, or gasket. So the homeowner instructed the delivery crew to use an old, existing washer from the previous machine.
The defendant argued they advised the homeowner to immediately do a load of laundry to make sure there were no leaks, but she did not do this because she had to go to work.
In the Provincial Court ruling, released April 14, Justice Pharo ruled the defendant was 70% liable, finding that the delivery crew only hand-tightened the connection — rather than use a wrench or plier set to tighten the connection further.
The total cost to restore the basement was over $54,000 but the maximum in damages that Alberta’s Provincial Court (as opposed to the Court of Queen’s Bench) can award is $50,000.
Justice Pharo reduced the damages by 25% due to the “betterment” principle. This is when a defendant can show the court that some of the repairs were done to parts of the building that had depreciated in value — meaning the job put the plaintiff in a better position than before the loss.
So by knocking off amounts for the betterment principle and plaintiff’s contributory negligence, and then adding plaintiff’s legal costs, Chinook is on the hook for $26,250 damages plus $1,600 in costs.
The manufacturer’s instructions for the washing machine delivered to the couple — entered into evidence — stipulate that when the hoses from the appliances are connected to the water taps, they are to first be tightened by hand. The manual further says the hose connections should be tightened for an additional two-thirds of a turn using pliers.
A Chinook employee who delivered the appliances said they often install washers when the deliver them but normally tighten the hose connections by hand only. But if a connection were to leak, they would use tools to tighten it. The employee did not have a detailed recollection of what happened at the Kuerbis and Sanford residence. The employee testified that if they delivered 10 washers and dryers, they would only use tools on one or two.
The plaintiffs called a gas fitter as an expert witness, who testified that connections of this type must be tightened by wrench.
Justice Pharo found that in the case of Kuerbis and Sanford, the deliverymen tightened the hose connection by hand only and this was the primary cause of the leak.
In finding the plaintiffs 30% liable, Justice Pharo found that if Sanford had done a load of laundry immediately after the installation, as she was advised by Chinook, she would have detected the leak and most if not all the water damage would have been avoided.
Feature image via iStock.com/JodiJacobson