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Volume XI, Number 338

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Read Before You Proceed – A Cautionary Tale at the Crossroads of Technology and Construction

COVID-19 unquestionably changed the world in countless ways. One of the most significant is that it forced everyone online, from our youngest to our most elder. Those who resisted the lure of online shopping or social interactions pre-COVID were thrust into the jungle of the internet, likely forever captured by its convenience. However, modern-day conveniences are not without traps and pitfalls – enter the case of Wollen v. Gulf Stream Restoration & Cleaning, LLC, issued by the New Jersey Appellate Division on July 9, 2021.

The basic facts of Wollen are straightforward. The plaintiff purchased a home and wanted to have some renovations done. Since the days of the yellow pages are long gone, the plaintiff utilized the services of HomeAdvisor, which purchased Angie’s List in 2017. HomeAdvisor is a website that connects consumers with “pre-screened pros” for construction and home improvement projects. Plaintiff navigated through a series of webpages, providing responses to questions concerning the scope, timing, budget, and other information regarding her potential project. Upon completing the responses, plaintiff was required to click a submit button to process her service request. Immediately below the submit button was the statement: “By submitting this request, you are agreeing to our Terms & Conditions.” The text of “Terms & Conditions” was distinguished from the remainder of the statement by blue font indicating it was a hyperlink to HomeAdvisor’s terms and conditions. The website did not require any acknowledgment, confirmation, nor did it require the user to read the terms and conditions before submitting the request. Plaintiff submitted her request but did not click on the terms and conditions.

Through her service request with HomeAdvisor plaintiff was connected to Gulf Stream Renovation & Cleaning, LLC, which she retained to perform the desired renovation work. One year after retaining Gulf Stream and expending over $97,000, plaintiff filed suit against Gulf Stream due to its failure to properly perform the renovation resulting in monetary and property damage to the plaintiff. Plaintiff later amended her complaint to assert numerous claims against HomeAdvisor including fraud, breach of contract, negligence, and property damage. HomeAdvisor sought to compel arbitration arguing that by using its website plaintiff had consented to arbitration and waived her right to a jury trial. The trial court agreed with HomeAdvisor and ordered the parties to submit their claims to arbitration.

On appeal, the Appellate Division reversed the trial court’s order finding that HomeAdvisor’s website failed to provide reasonable notice to plaintiff of HomeAdvisor’s terms and conditions, and particularly of the arbitration provision. The Appellate Division held that “HomeAdvisor failed to establish that plaintiff assented to its terms and conditions, including the arbitration provision at issue, which was masked behind a layer of webpages.”

The lesson here is simple and timeless – read before you sign, or in the case of Wollen, click submit. Plaintiff in Wollen was lucky because fortunately for her, HomeAdvisor’s website failed to properly advise her (no pun intended) of the arbitration provision and her case was able to proceed before the court. The next person, perhaps you, may not be so lucky and stumble upon an unenforceable arbitration provision.

Whether you are seeking to retain a contractor the old-fashioned way, albeit socially distanced, or through the newest and trendiest app, the most critical step you can take is to read the fine print, or better yet, retain competent counsel experienced in construction and construction transactions. You better believe the contractor you are retaining or the website you are using has an attorney (or team of attorneys) on their side – why shouldn’t you?

COPYRIGHT © 2021, STARK & STARKNational Law Review, Volume XI, Number 196
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About this Author

John S. Prisco, Stark and Stark, Construction Litigation, New Jersey
Associate

John S. Prisco is a member of Stark & Stark’s Construction Litigation Group. He concentrates his practice in the representation of complex construction litigation claims.  His clients include condominiums and community associations, commercial and industrial property owners, homeowners and developers.  

Prior to joining Stark & Stark, Mr. Prisco served as a litigation associate for an AmLaw 100 law firm where he defended commercial litigation matters in federal and state courts in New York and New Jersey.  

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609-945-7622
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