*CASE STUDY: $120,000 Recovery for Faulty Forklift

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By: Bill Henry
PublishedJul 26, 2021
6 minute read

Robinson & Henry Client Collects Treble Damages
for a Used Forklift that Never Worked

Rosemary sought Robinson & Henry’s help to recover the money she spent on a used forklift that never worked after she purchased it.

In the following case study, you’ll read how Robinson & Henry successfully helped a client recover three times the amount of money she spent on an inoperable used forklift.

Our attorney’s knowledge of the law coupled with a lackadaisical forklift company paid off in a big way for our client.

Past results afford no guarantee of future results; each matter is different and must be judged on its own merits. Facts are those of an actual Robinson & Henry litigation case. We used a pseudonym for our client and did not use the company’s actual name to protect their privacy.

Background on the Faulty Forklift Case

Rosemary, an experienced Colorado contractor, is no stranger to the construction business or the heavy equipment that comes along with it, like forklifts.

Forklifts are expensive pieces of machinery; used ones can cost tens of thousands of dollars. Rosemary paid $40,000 for a used forklift back in the fall of 2019.

It was admittedly a risky purchase. The used forklift came with a buy-at-your-own-risk type of contract, and the equipment was not running well. The company, though, agreed to repair the forklift and deliver it later. So, Rosemary moved forward with the transaction.

In December 2019, the used forklift company delivered what should have been a repaired forklift, but there were still major issues.

“It was almost impossible to start, [but we] finally got it off the trailer,” Rosemary recalled. “[Then] it never ran for the next nine months.”

Between December 2019 and August 2020, the used forklift company returned to fix the forklift numerous times at Rosemary’s request. But the repairs never worked.

“[The forklift] had smoke and fluid pouring out of it like something you would see on TV,” Rosemary said.

It became clear that the equipment was unsalvageable, and Rosemary demanded a refund.

The used forklift company flat out refused.

Time to Hire an Attorney

After nine months of having an inoperable forklift on her property, Rosemary was fed up.

“I gave the defendant about 20 chances to do the right thing,” Rosemary said. “[The forklift dealer] was not repairing the forklift, so I finally decided to retain an attorney.”

Rosemary contacted Robinson & Henry for assistance, and her case was assigned to Lead Litigation Attorney Geanne Moroye.

The Case’s Challenge

The major hurdle our Litigation Team faced was the as-is, no warranties contract Rosemary agreed to when she bought the used forklift.

Attorney Geanne Moroye’s first step was to send the used forklift company a letter demanding them to refund our client’s $40,000 and pick up the inoperable forklift.

Demand letters are a great legal tool to resolve a problem before a lawsuit is filed. The strongly worded letter tends to get the other party’s attention about the issue because the communication usually notes a possible legal claim against them if they do not address the problem in a timely manner. Demand letters have the ability to save clients time and money.

In this case, the used forklift dealer never acknowledged the demand letter.

So the next logical step in Rosemary’s case was to proceed with a lawsuit.

Suing the Used Forklift Company

Breach of Contract

Geanne filed a breach of contract claim for unjust enrichment on the sale of the inoperable forklift.

Unjust enrichment is the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. 66 Am. Jur. 2d Restitution and Implied Contracts § 3

“To prevail on an unjust enrichment claim, a party must prove that the defendant received a benefit at the plaintiff’s expense under circumstances that would make it unjust for the defendant to retain the benefit without commensurate compensation.” Lewis v. Lewis, 189 P.3d 1134, 1141 (Colo. 2008)

Geanne felt Rosemary’s lawsuit had a chance to be successful, however, the “no warranties” contract could be the sticking point in court.

Civil Theft Claim

In addition to the breach of contract claim, Geanne researched civil theft claims and included that in the lawsuit, too.

Colorado law allows theft victims to go to civil court to recover monetary damages for their stolen property. Defendants in civil theft lawsuits do not have to be convicted of criminal theft for the court to order them to pay up in a civil theft case.

In Colorado, someone commits theft when she or he “knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception … and: intends to deprive the other person permanently of the use or benefit of the thing of value; knowingly uses, conceals, or abandons the thing of value in such manner as to deprive the other person permanently of its use or benefit.”  C.R.S.A. § 18-4-401

In Rosemary’s lawsuit, Geanne asserted that the forklift dealer:
  • took and obtained control over Rosemary’s property (her money),
  • refused to return it,
  • continued to maintain control of it without her permission,
  • and used it without her permission.

“If you are successful for civil theft, you get treble damages,” Geanne said.

Treble damages are three times the amount of the actual damages sustained by a victim. Geanne was confident the civil theft portion of the lawsuit would hold up in court.

No Stone Left Unturned

In an effort to build the strongest case possible for Rosemary, Geanne looked for any potential fraudulent acts committed by the forklift dealer.

A fraud claim would have been another avenue for our client to obtain treble damages. However, Geanne found no evidence to support a fraud claim.

Obtaining a Default Judgment

When someone is sued in Colorado, they are given time to respond to the complaint. By law, defendants must respond within 21 days of receiving the summons and complaint.

If the defendant does not respond to the lawsuit, the plaintiff – the person who filed the claim – can request a default judgment. In these instances, the court would by default rule in favor of the plaintiff since the defendant did not respond to the lawsuit.

Now, if the defendant files a good reason for why they did not respond to the lawsuit within the 21-day timeframe, the court will usually vacate the default judgment.

As it did with the demand letter, the forklift company also ignored the lawsuit.

“I was counting the days and until I could file the default,” Geanne said. “I expected them to file a viable excuse as to why they did not respond … but they did not even do that.”

As a result, we obtained a default judgment for Rosemary.

She was awarded treble damages of $120,000 on the $40,000 used forklift, as well as some of her attorney fees.

Collecting the Client’s Money

The next step in Rosemary’s case was for her legal team to file a Writ of Garnishment with the court to obtain the default judgment from the forklift company’s bank account.

Rosemary’s lawsuit took place in the midst of the COVID-19 pandemic, and at the time the federal government had issued a temporary halt on garnishments. As a result, the court initially denied our request for a Writ of Garnishment.

However, Robinson & Henry knew the garnishment moratorium did not apply to corporations – which was the forklift company’s business structure. Once this was clarified with the court, it issued the Writ of Garnishment to the bank.

It took some time for Rosemary to receive the money from the defendant’s bank, as it, too, spent time confirming the garnishment with the court due to the pandemic regulations.

Exceeding the Client’s Expectations

Achieving the client’s objective is Robinson & Henry’s top priority in every case. However, it would be unrealistic to think that every case will end with exactly what the client wants. Sometimes, the end game is getting as close to the client’s goals as possible. Other times we completely surpass the client’s expectation, as we did in Rosemary’s case.

“My expectations were very much exceeded. First, because Geanne requested treble damages, which I never would have thought we could ask for,” Rosemary said. “I appreciate this aggressiveness so much because it’s going to cost about $40,000 to repair the $40,000 forklift.”

Rosemary’s Advice to Others

Very few individuals want to file a lawsuit. Litigation can be very expensive and drag on for months or years in some cases.

Rosemary suggests people should make “every effort to work it out first with the other party” before jumping into a lawsuit.

However, Rosemary noted she walked away with three times more money by getting a lawyer than if she had not pursued legal action.

“I would not have been in this much better position. So, for me, this worked out better than any issue in the past,” she said.

“This is only the second time I have had to resort to filing a lawsuit, which shows that mostly I try to work it out with subcontractors and not let it go to litigation.”

We Can Help You, Too!

Time is a very important element of a successful lawsuit. Colorado limits how long you can sue someone. This is called the statute of limitations, and, generally, these range from one to three years. Some claims give you more time, like six years for a contract case.

In addition to time, there are various other important factors to consider when you begin to explore filing a lawsuit, such as whether you have a viable case, and, if so, do you have the time and money to take it to court.

Our litigation attorneys can discuss with you these types of factors and possible resolution alternatives, such as a demand letter or mediation.

We offer a 30-minute case assessment. Call 303-688-0944 to schedule that meeting, or click here to set the appointment online.

Lawsuit Resources

Do You Have a Case? A Legal Guide

Getting Ready to File a Lawsuit: A Legal Guide

Past results afford no guarantee of future results; each matter is different and must be judged on its own merits. Facts are those of an actual Robinson & Henry litigation case. We used a pseudonym for our client and did not use the company’s actual name to protect their privacy.

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