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A new class action lawsuit in state court in Florida alleges that Home Depot automatically adds a 10 percent charge to all rental equipment to cover possible damage to tools without telling customers that the charge is optional. The suit, filed Nov. 30 in Fort Lauderdale, seeks class action status for the estimated thousands of customers in Florida who rented equipment from Home Depot during the last five years. It claims that Home Depot is violating Florida’s Deceptive and Unfair Trade Practices Act as well as Florida’s Uniform Commercial Code. It seeks both damages and an injunction forcing the Atlanta-based home improvement giant to cease the practice. The named plaintiff in the suit is Pembroke Park-based Gold Coast Racing. The suit claims that last June, Gold Coast Racing rented a power saw, wrench and other equipment from a Home Depot located in Hollywood. The Gold Coast employee who rented the equipment was unaware that the store was charging him a 10 percent damage waiver on his $39 bill; he would have refused the waiver fee if he had known about it, the suit says. The suit claims that Home Depot furthers this deception by listing the waiver as a tax. On another occasion, according to the suit, Gold Coast Racing employees asked that the damage waiver fee be removed and Home Depot refused to do so. The suit was filed in Broward County Circuit Court by Weston lawyer Lawrence Klitzman and Chicago lawyer Jonah Orlofsky. On Dec. 20, Home Depot petitioned to remove the suit to U.S. District Court in Miami. Home Depot’s defense counsel, Shook Hardy & Bacon in Miami, did not return calls for comment, but a company representative said that Home Depot was unable to comment on pending litigation. In March, Orlofsky filed a nearly identical suit in U.S. District Court in Chicago for which he is seeking class action status. He said he has no plans at this time to file suits against the home improvement giant in any other states. According to his suit, Home Depot had 1,061 tool rental centers throughout the United States as of 2004. In its motion to remove the Broward case to federal court, Home Depot stated that it “believes that class certification is not appropriate in this action and that Home Depot will prevail on the merits of plaintiff’s claims.” Under the federal Class Action Fairness Act of 2005, all class action lawsuits that include more than 100 plaintiffs and in which damages could exceed $5 million must be filed in federal court. In a motion seeking to move the case to federal court, Home Depot’s lawyers at Shook Hardy said damages in the case would exceed that figure. According to the Broward suit, customers can avoid paying the damage waiver fee only by affirmatively demanding its removal from the invoice. And there are major limitations in the protections the damage waiver offers customers. According to the complaint, the damage waiver covers liability for accidental damage to the rented equipment, but not losses or damages due to theft, burglary, misuse or abuse, theft by conversion, intentional damage, disappearance or any loss due to the customer’s failure to care properly for the equipment. The latter category includes failure to use proper fuel, oil and lubricants and not exceeding the equipment’s rated capacity. Another problem with Home Depot’s waiver policy, the suit states, is that the company charges the fee on equipment that “is almost impossible to damage,” such as wrenches. It also calls the 10 percent fee “exorbitant.” On top of that, the suit states, Home Depot fails to give customers the written terms and conditions of the contract, which describes the damage waiver, until after they sign the contract. Consequently, the suit says, customers are not informed of the scope of the damage waiver prior to agreeing to rent the tool. Home Depot is not the only large retailer that charges a damage waiver fee on rental equipment. Its rival, Lowe’s, rents equipment through NationsRent, which charges a 14 percent damage waiver fee.

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