Ebay Purchase

[Greekcs]

New York.

I purchased a new carbon fiber roof panel via ebay, September of 2009. I paid $1657.60 for the item and received it about a week later. The box was intact but the item was cracked in several locations. I immediately contacted the seller and UPS. UPS advised me to take detailed photos of the damage and all packaging materials. I did so and was notified by UPS that the claim was now in the hands of the seller. I provided the seller with a written estimate to repair the item. Communication between the seller and I was constant and he reassured me that when the claim was paid that he would pay me. This struck me as odd, but I reluctantly played along.

As of today, I have not received one piece of communication back from the seller since 12/10/09. I've sent several emails. I contacted UPS and was notified that the claim was being paid out. So, as of now, the seller has my money and is about to receive a check in the amount of the claim. What can I do to get my money back?

 

[TheLawMan]

I need some more information from you about this transaction.

Firstly, you purchased the item off of eBay. Are you a business or a consumer? Is the seller you purchased it from a merchant or a consumer-seller? Where is the seller located?

What specifically did UPS advise you to do? After taking the photos and, I'm assuming, writing a report, who did you submit the documents to: UPS or the seller?

Finally, why did you keep the item as opposed to returning it? Did the seller have any influence on this or was this your own preference? Was the item repaired yet?

 

[Greekcs]

I purchased the item as a consumer from a private seller. The item was purchased from California. Upon receiving the item I held onto it with the intent of repairing it via a settlement from UPS. UPS deamed it a total loss and is going ahead with the payment of the claim. I initially filed the claim with UPS, but since the seller was the shipper, he had to submit all the paperwork. I have email communication with the seller up until 12/10/2009. In one of his emails he made it clear that he would send me any monies collected from UPS. Seemed like a straight shooter. In hindsight, I should've demanded a refund from the very beginning.

 

[TheLawMan]

You may still be able to obtain a refund, but this would require either cooperation from the seller or a court order mandating such and would require you to travel to California for the proceedings.

How long has it been since the seller responded to your last email? Do you have any other means of contacting him? Did UPS release the check yet?

If UPS did not yet release the check and the seller is absolutely not response, it may be worthwhile to write a letter to UPS' legal department outlining the situation with a copy of the seller's email/letter stating that you are entitled to the UPS claim. In this letter, you should argue that you are a third party beneficiary to the claim and have legal recourse against UPS as well as the seller.

Hope this gives you some guidance.

 

[Zigner]

You may still be able to obtain a refund, but this would require either cooperation from the seller or a court order mandating such and would require you to travel to California for the proceedings.

How long has it been since the seller responded to your last email? Do you have any other means of contacting him? Did UPS release the check yet?

If UPS did not yet release the check and the seller is absolutely not response, it may be worthwhile to write a letter to UPS' legal department outlining the situation with a copy of the seller's email/letter stating that you are entitled to the UPS claim. In this letter, you should argue that you are a third party beneficiary to the claim and have legal recourse against UPS as well as the seller.

Hope this gives you some guidance.

OP is not a party to the shipping contract OR the insurance purchased. UPS has no legal (or moral) obligation to pay the recipient anything.

 

[TheLawMan]

Not true, OP is definitely a party by being a recipient. More so, OP stated that

In one of his emails he made it clear that he would send me any monies collected from UPS.

This is an assignment and if it was made known to UPS, then OP has rights.

 

[Zigner]

Not true, OP is definitely a party by being a recipient.

How do you figure? In this case, the contract is between the SHIPPER and UPS. Period.

More so, OP stated that This is an assignment and if it was made known to UPS, then OP has rights.

Disagree. This is NOT an assignment. This is a promise to pay that the seller made to the buyer. Seller did NOT assign his right to collect from UPS to the buyer.

 

[TheLawMan]

Zigner, your theory of third party beneficiaries is incorrect. A third party beneficiary ("TPB") does not have to be a party to the initial contract nor does he have to be the only one benefiting from the contract.

It is not necessary that a contract identify a third party beneficiary by name as long as such third party can show that it is one of a class of persons for whose benefit it was made (General Motors Corp. v Superior Court (1993, 4th Dist) 12 Cal App 4th 435, 15 Cal Rptr 2d 622, 93 CDOS 301, 93 Daily Journal DAR 552.).

Clearly, OP paid the seller to ship the purchased item and the shipper was to deliver the package to the OP without any damage. OP definitely benefits to the contract between the seller and shipper as this allows him to take possession of the purchased item.

If your thinking differs, please explain and, if possible, reference a prior ruling.

 

[Zigner]

CONTRACTUALLY, UPS is only liable to the SHIPPER. That is included in their CONTRACT. Check it out if you'd like...www.ups.com

 

[Zigner]

When you're reading their terms, please keep in mind who the claimant is. Also, pay particular attention to the indemnification portion...

 

[coolansh1984]

Really sometimes online shopping sucks .