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Say that you enter into an agreement with a contractor to fix something in your house. He assures you there won't be any repercussions until he can get to it in a couple of days, but before he comes the delayed repair has resulted in damage to your house. Having relied on his expertise to assess the situation, does he have liability for the damage and should his insurance or mine cover the repairs?

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If the contractor's advice that delay would be safe was reasonable under the circumstances, and other contractors or skilled professionals would have given similar advice, then the contractor will not be liable just because the advice was incorrect.

If the advice was negligent, and fell clearly short of what a skilled professional would advise in the circumstances, then the contractor may have liability for the additional damages.

That is the detailed facts will be very important in placing liability. The contractor is not an insurer who assumes all risk, but the contractor is responsible for acting in a reasonable, professional manner.

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  • So to win a case against the contractor, one would have to find several people with the same expertise who would have recommended a more timely repair? I talked with my usual contractor in the same field but who doesn't do the particular job under discussion here and he said it would be hard to judge as he wasn't there for the initial assessment. I think that might be a common, and valid, response. But there's also contractors' natural reluctance to criticize one of their own. Aug 13, 2021 at 17:32
  • The person bringing such a case would have the burden of proof, ad would have to supply evidence that would convince the court or jury that the contractor's actions were outside the range of reasonable professional standards, and were the cause of the damage. As to just what evidence would be needed, one would do well to consult a lawyer with experience in this specific area. Here we can only answer what the general legal principle is. Aug 13, 2021 at 18:09
  • @Not_Einstein no, it doesn’t matter what other actual contractors might have done. It matters what a hypothetical reasonable contractor in possession of the same facts would have done.
    – Dale M
    Aug 13, 2021 at 21:52
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should his insurance or mine cover the repairs?

That's a matter for his insurer and yours to work out between themselves.

If you have insurance that covers the damage, you should report the damage to your insurer. If they agree that it's covered, then they'll pay you and that's more or less the last you should hear about it.

If the contractor has liability, it is for your insurer, not you, to pursue the contractor for compensation. If the contractor submits a valid claim to his own insurer, then your insurer and his will determine who bears what portion of the liability.

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  • This answer may well be good advice for the asker or a person in that position, but it does not seem to me to illuminate the legal position much. Aug 13, 2021 at 14:40
  • It’s quite likely the contractor won’t have the right type of insurance. Liability for advice needs a professional indemnity policy, general liability policies don’t cover it.
    – Dale M
    Aug 13, 2021 at 21:54
  • @DavidSiegel I agree. I've just found that a lot of people don't understand this, so I think it deserves to be said. I once spent something between 30 and 45 minutes in a co-op board meeting repeatedly telling everyone that it was not our problem whether a certain mistake was to be paid for by our tenant/shareholder, by the contractor who made the mistake, or by one of their insurers, and that we should move on to other business. Nobody seemed to understand.
    – phoog
    Aug 13, 2021 at 22:37
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If the contractor was negligent: yes

To prove negligence, you must prove the contractor:

  1. had a duty to you,
  2. breached that duty by failing to conform to the required standard of conduct (generally the standard of a reasonable contractor),
  3. the negligent conduct was the cause of the harm to the plaintiff, and
  4. the plaintiff was, in fact, harmed or damaged.

1 is probably a given.

Whether the contractor breached their duty depends on what they actually did and what a reasonable contractor in their position would have done. As to what they actually did, there is a world of difference between "I think it will be OK for a few days" and "It will be OK for a few days". The first isn't negligent, the second is. As to what a reasonable contractor should have done, that will depend on the circumstances: it does not depend on a poll of other actual contractors although they might be sources of expert testimony.

For point 3, you need to show the "but for" causal link. That is, assume the contractor had said: "get it fixed immediately", you would need to prove that you could have actually done that. If the contractor's advice (right or wrong) would have had no bearing on the outcome, they are not negligent.

For point 4, the contractor is only responsible for damage that occurred as a result of the advice, you would need to prove what damage occurred between the earliest point where you could have got it fixed and when you did get it fixed. Remembering that the contractor's position will probably be that all of the damage had already happened or was going to happen anyway.

Further, if you have a contract with the contractor, that may limit their liability to negligence and exclude damage arising from design or professional advice.

Notwithstanding, it's likely that the contractor is not insured for giving advice. General liability policies don't cover it; you need to take out a professional indemnity policy and most small contractors a) don't know that or b) don't incur the expense if they do.

It's also likely that your home policy won't cover it. They generally do not cover damage from failure to maintain the premises.

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