Are there any laws in the Commonwealth of Kentucky that hold a builder
of new residential construction accountable for the following
situation?  The hot water heater installed is a 30 gallon heater, but
the jacuzzi tub that was a major part of the appeal of the sale is
rated for a heater of a capacity no less than 60 gallons.

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Request for Question Clarification by weisstho-ga on 04 Feb 2006 14:01 PST

Dear Searcher:

Just three questions, please: (1) Was the jacuzzi tub in the original
plans and specifications?  (2) If yes, did the builder create the
plans and specifications?  (3) Did the person who chose the 30 gal
water heater know of the plan for the jacuzzi?

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Clarification of Question by wefoundnemo-ga on 04 Feb 2006 18:52 PST

The builder built the home and we purchased it directly from him in as
"new construction".  All of the appliances etc., were those that he
installed himself as part of the home and the appliances are all
purchased buy him from the local Lowes after which he stores them in
his warehouse until he uses them in a new construction project.  The
builder himself put the 30 gal heater in.  This is not a large company
of any kind, just a simple local builder who manages all of his own
projects.  In fact he lives next door to me and has explained that he
simply puts in appliances from his available warehouse stock at the
time of construction.  Prior to purchasing the home, the jacuzzi was
already installed, as was the water heater.  Thanks.

Dear WeFoundNemo:

Of course, I must remind you that we do not give legal advice per se,
and in this particular case that prohibition is well placed. I am an
attorney (in Michigan) and I have litigated such a case. How Michigan
courts interpret construction disputes as compared to the Kentucky
courts is a weighty matter and, therefore, advice from Kentucky
counsel is necessary to accurately answer this question. Now, although
the basic answer is simple and straight-forward, the real life answer
is not so, because of the following:

In speaking of contract law, there are two broad fields:  the common
law consisting of the doctrines and court decisions that have evolved
over the centuries, and the Uniform Commercial Code that was adopted
by each of the states in the 1960?s.  The UCC deals with sales of
?goods? while the common law deals with ?services.? Of course in the
construction of your home both were involved.

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BREACH OF WARRANTY:

In the Uniform Commercial Code there is a section that deals with a
certain ?implied warranty? dealing with Fitness for Particular
Purpose. This is located in the Kentucky Revised Statutes, section
355.2-315:

?Where the seller at the time of contracting has reason to know any
particular purpose for
which the goods are required and that the buyer is relying on the
seller's skill or judgment
to select or furnish suitable goods, there is unless excluded or
modified under KRS 355.2-
316 an implied warranty that the goods shall be fit for such purpose.?
http://www.lrc.ky.gov/KRS/355-02/315.PDF

The interpretation of this would be that the seller (contractor) knew
of the additional demand placed upon a hot-water heater by the hot
tub. You relied upon the contractor?s skill to select a suitable water
heater. If he did not select such a suitable water heater, he may be
liable to you.

This is a provision of contract law that actually makes some sense,
doesn?t it? You depend on the contractor/designer for the right stuff
. . . they fail to provide it . . . you are damaged.

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HOW BIG A WATER HEATER IS BIG ENOUGH?

The Jacuzzi Whirlpool Company, through their site found at
http://www.jacuzzi.com/support/faq/, state:

Q: How do I determine the proper water heater size for a new jetted bath?
A: A general rule of thumb is that the water heater should be
two-thirds the size of the water capacity of the bath. For example, a
60-gallon bath would require a 40-gallon water heater. This rough
formula does not take into consideration other demands that might be
placed on the water heater. We recommend that a plumber be consulted
for your particular application.

Now, you didn?t indicate whether the 30-gal heater is gas or electric,
but please note that a 30-gal gas heater is much more efficient than a
30-gal electric heater.

Here?s a Consumers? Reports article:
http://www.consumerreports.org/cro/home-garden/heating-cooling-air/waterheater-tips-205-gas-hot-water-heater-electric-hot-water-heater.htm

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IF YOU NEED ANOTHER, NOW MUCH $$$ ???
 
See ?tankless? water heaters which run in the $900 range with $300 tax
credits here:
http://adwords.tanklesswater.com/?ref=gawtwamerica&kw=%22water+heater%22
Some FAQ?s on tankless systems can be found here:
http://www.tanklesswaterheaters.com/tanklessfaq.html

Lowe?s has a 40-gal gas hot water heater for approximately $580: 
http://www.lowes.com/lowes/lkn?action=productDetail&productId=29940-135-PVG2F4050T3P&lpage=none

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RECOURSE AGAINST CONTRACTORS

At the time that I wrote this answer the various Kentucky websites
relating to Licensing and Construction codes were down.  Their links,
however are:

Enforcement of Building Codes: http://hbc.ppr.ky.gov/BCE.htm
Licensing and Compliance: http://dcg.ppr.ky.gov/license.htm

Lawsuits make little or no sense in a case like this. In most states
the best recourse, assuming of course that the builder doesn?t take
care of it on his own, the best recourse is to file a complaint with
the bureau that licenses builders. If there is a local builders
association, they may (though it is unlikely) have an administrative
mechanism to deal with the issue.

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FINANCIAL INJURY?

I suppose that your financial injury is, at most, the cost of a new 40
gal water heater installed in a water circuit for the hot tub. $580
plus installation.

The injury, at least, would be $0 if the contractor would show that
the tub could be filled adequately with the existing water heater,
even if a small delay were necessary for the water heater to recharge
itself.

The midpoint injury would probably be the (1) cost of the larger water
heater minus (2) the cost of the heater actually installed.

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I hope that I?ve given you what you need. Given the UCC provision on
the implied warranty and the Jacuzzi Corp information you should have
the stuff of a demand to your neighbor.

If you require ANY additional information, please let me know by
hitting the ?CLARIFICATION? button and I will get right back to you.

In any case, I hope you are completely satisfied with my answer.

Weisstho-ga

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Search Strategy:

Kentucky Statutes
UCC
Implied Warranty
Kentucky Governor
?Water Heater? 
?Water Heater? and ?Hot Tub?

I am an attorney in Kentucky that practices only defective
construction cases. I am also a Kentucky Building Inspector and
Certified Building Official by Kentucky and the ICC as well as an
engineer and builder.

Kentucky has a very powerful statute that is unique in the fifty
states. KRS 198B.130 allows an owner to recover for the mere existence
of a code violation. The situation you describe is likely a code
violation as the heater should have been sized in accordance with the
manufacturer's installation instructions for the tub. The MII are
incorporated by reference in the Kentucky Residential Code and the
Kentucky Plumbing Code.

I do agree that the matter is likely not worth the cost of litigation
and you should work it out with the BBB or other channels.

Finally, this is not legal advice and I represent no one in this
matter as an attorney. You should seek competent Kentucky counsel to
help you.

Hello rgsteph,

Very interesting!  Strict liability taken to the construction biz. 

Thanks for your informed comment.

Tom