Take a deep breath. If you can hold it for 30 seconds, then you can get through the next two paragraphs of legal mumbo jumbo that’s required as a foundation for this article.
Amicus Curiae is Latin for a friend of the court. In the legal sense, it’s a bystander (usually a counselor) who interposes and volunteers information upon some matter of law, in regard to which the judge is doubtful or mistaken. It could be upon a matter that the court might take judicial cognizance. Basically, it implies friendly intervention of counsel to remind the court of legal matter, which has escaped its notice and regarding where it appears to be in danger of going wrong.
In this case, it would be a person who has no right to appear in a suit but is allowed or invited to introduce argument, authority or evidence to protect his interest. It could be you or me.
It began last month with a fax from a major carpet mill asking me the age-old question of who was at fault when water marking and pooling occur. I was asked to read the inspector’s report and give my thoughts on it.
In very descriptive and colorful words, the fax included the mill’s thoughts. Comments like, “We don’t have a snowball’s chance in hell to rebut this report” flew across the page. They were outraged. They wanted to know “who does this inspector think he is anyway, Clarence Darrow?” It was obvious to the mill, based on the report, that the inspector was not a graduate of a school that specialized in textile education, but rather a biased, uninformed inspector winging it, much to the mill’s detriment.
This inspector—the mill’s words shouted—doesn’t make the rules for the carpet industry. To name a few, it’s The Wools of New Zealand, The CRI, and the IICRC who do. The inspector should know this and respect those in the industry and countless others who have authored studies and done research on water marking/pooling. Without exception, these reports state that it is a location phenomenon, and not a manufacturing defect.
The carpet in question was a cut pile crush resistor. It’s an 8th gauge 10th stitch rate in a sand color with about 70 ounces of face weight. Nothing unusual.
The inspection addressed concerns for five items: (1) Irregular shaped crushed areas winding throughout the carpet’s surface; (2) Blotchy spots and shading within the crushed areas; (3) Pile direction change within the crushed areas; (4) Shedding; and (5) Delamination.
He dismissed shedding and delamination as a basis for a claim. However, he concluded that one, two and three—based on his visual inspection, samples, exhibits and tests performed —were mill defects.
He didn’t say what tests he performed or cite any rules, guidelines or standards set by the industry and/or any testing body.
He didn’t discuss possible causes or different scenarios that the industry has learned from; he just vented his obvious bias against the mill. The concept of a third party inspection was missing.
The report stated that irregularly shaped crushed areas, blotchy spots and pile direction change are a condition called pooling/water marking. He didn’t say where he got this definition or information. He stated, “According to some carpet manufacturer warranties water marking/pooling isn’t a manufacturing defect.” He didn’t define “some.” He didn’t say whether this particular carpet manufacturer had such a warranty. Realizing this path wasn’t working, this inspector started practicing law.
Now, here’s what sent the claims manager ballistic. This inspector shifted gears and said that because of the now existing condition, the consumer might have specific legal rights of implied warranty. Whether or not a pile reversal is considered an Implied Warranty is arguable in a court of law, especially when it’s a phenomenon brought on by the building.
He stated these rules could vary from state to state. He said if the consumer wasn’t advised by the warranty on the sample that this condition could occur, then the mill is liable.
Mr. Inspector, have you any case precedents for all these balloons your flying over the water? Did you check that state’s rules and how they are worded? Is the mill liable for a condition that is environmentally caused?
The reasons for pile reversal are numerous. To name a few, some say it’s uneven concrete or wood floors, water vapor, installation pivoting, traffic patterns, HVAC flow, northern and southern magnetic polarization. It’s yet to be said that it was manufacturing or any of the things just mentioned.
Why is it Mr. Inspector that water marking/pooling is easily corrected once the carpet is removed from its present location? It was in perfectly good condition when it was installed.
His report stated the omission of a warning might have precluded the ability of the consumer to entertain his/her option of selecting a carpet from a different manufacturer or changing to a style in which this condition might not occur. What would a consumer know about pile reversal unless it was explained by the dealer, let alone which carpets are less likely to reverse? What types of statements were there on the back of the retailer’s invoice?
Finally, the inspector said, “Based on the fact the consumer was not advised that this condition could occur after the carpet was installed, replacement by the manufacturer would appear warranted.” His final statement was that as an additional consideration, this problem is not correctable. I agree with that, providing you leave the carpet in that building and environment.
The report violates the basic rule of inspection: It says, “In my opinion” instead of, “According to the rules, standards or tests.” The inspector’s opinion should be technical in nature, not a legal brief. He took journalistic license in order to have an inspector’s legal revocation of the problem. Notwithstanding that inspectors are experts in the carpet field and have a perfect right to give their opinion. It’s not the opinion I am looking at; it’s his position.
When the overwhelming preponderance of the evidence says otherwise, then common sense has to guide the situation. The law book gives rules for all people. When an inspector throws it at someone, he had better be prepared to catch it because it will come back as a fastball, not as a curve.