Avoiding Litigation Thread.

[Russel Ray]

Originally Posted by rwand1

That would depend, lug nuts are usually specified to have a manufactures torque setting.

Only if one is using a torque wrench, which the "normal homeowner" usually doesn't have.

Otherwise, the instructions usually say "hand tighten," as do the instructions for my Honda, Nissan, and Yamaha.

[Keith Swift, PhD.]

Ref, "before the close of escrow" phrase, consider also "within the contingency period," or "and/or." My paranoia is starting to show, if it hasn't already. PS I've been doing this for awhile, and learned something in the last few messages. Thanks.

[Russel Ray]

Unfortunately for me here in San Diego, rarely is there enough time left in the contingency period but there always is enough time left in the escrow period.

[Keith Swift, PhD.]

Same for me in Los Angeles, and the only reason that I pointed this out is because it came up as a point of contention when an inepsector's clients claimed that they should have been advised to take action "within the contingency period," because they had no legal access to the property after that. I know it's picky but, having been victimized, I've learned to react to any possible threat.

[Keith Swift, PhD.]

I want to thank everyone for their chimney comments, and particularly Joseph, who sent me the links to NFPA. Thanks to him, I now have what I think is a completely reasonable and ethical solution to my dilemma, and also an "authority" that I can cite, and a means of legal protection that I can rely on. As I've said before, I've been doing inspections for a long time, but manage to learn something new every day. And this truly demonstrates the value of an "avoiding litigation" forum, where inspectors can share ways with which to protect themselves from blue-collar terrorists.

[Keith Swift, PhD.]

Here are a couple of thoughts to keep spinning this thread. I truly admire those people who continually share what they’ve learned on the message board, and the poll regarding the number of inspections performed without a lawsuit definitely caught my attention. All the responses seemed to be sincere, and many of us might be inclined to believe that the best inspectors don’t get sued, but the truth is they do. It’s a numbers game, believe me. I’m not saying that I’m among the best inspectors, but after I’d in business for about twelve years I was slapped with two lawsuits in a five-day period, both without merit. In fact, at the next conference, I’ll share a number of actual lawsuits that have made a mockery of justice, and confirm why I continue to use military metaphors and never tire of warning that there are terrorists among us. I don’t care how good you are or how long you’ve been in business, sooner or later you’re going to get slapped with a lawsuit, and when you do you’ll feel the righteous indignation and utter helplessness that many of us continue to feel in the face of terrorist threats and lawsuits. And I’m not talking about righteous cases that deserve to be litigated, but cases that are without merit.

For this reason alone, NACHI inspectors should really consider forming a committee to work on a policy statement, (I don’t know what else to call it), regarding avoiding litigation. For instance, one inspector expressed the opinion that “pictures are not the answer for most clients,” and that might be true for most clients, but is it true for most inspectors? I know for a fact that demand letters and threats from clients and attorneys alike have been stopped dead by eight-by-ten pictures. And, without such pictures, inspectors will remain vulnerable to litigation. I know of one veteran inspector who takes between seventy and one-hundred pictures on every inspection, none of which are included in his report, and when asked why he takes them he states: “for purposes of documentation.” And he’s shot-off a few of them over the years, like laser-guided bullets, into the hearts of terrorists. In my view, a digital camera should be included in the arsenal of every inspector.

Similarly, other inspectors have dismissed what are mistakenly called “disclaimers,” as unnecessary clutter that their clients will never read, while other more cautious inspectors, like Russell Ray, regard them as essential educational material. At the very least, we should have a position statement that delineates their undisputed value. And what about our contracts and our standards?

Joe Ferry continues to remind us that they offer us the very best protection, and he’s right in some respects, and would be indisputably right if we had a parliamentary system of justice in which the prevailing party truly wins, but we don’t; so terrorist clients and attorneys will continue to sue us, assured that most claims will be settled for economic reasons. As to specific contracts, I’ve shared mine with NACHI members in an article in which I argued for the use of clauses that were rational and ethical but not necessarily legal. My point in a position statement on such clauses would be that if they stop just one person from calling an attorney then they work, and who cares if they wouldn’t hold up in court. Consider what enormous responsibilities we accept as inspectors, and for a pittance of what other trade specialists charge for their services. We need to reconsider our liabilities, and learn to protect ourselves better.

Years ago, after attending a day-long seminar on the inspection of swimming pools, I was having lunch with an inspector who bluntly stated that he categorically recommends removing all diving boards. Well, I was a pretty good diver in my youth, and can still do a fairly decent one-and-one-half somersault off a spring board without making much of a splash, and therefore dismissed his recommendation as being evidence of his paranoia. And yet today, having been frivolously sued, I truly appreciate what he meant and would never dream of saying anything about a diving board or water slide other than recommending that it be removed. I’ve told the story about one highly qualified veteran inspector who was sued by someone who elected to dive into a pool from the top of a water slide, and ended up in a wheelchair. A sardonic friend of mine expressed the opinion that it was nature’s way of cleansing the gene pool, but the inspector was forever changed by the event. The truth is lawsuits are rarely about truth and justice and personal responsibility, and too often about greed and deceit and the absence of moral character. I’ll show you some at the next conference that would defy belief if they weren’t real. But let’s talk about codes and computers.

We all disclaim a code-compliance inspection, and with good reason. But without a substantial knowledge of codes how can we perform a professional inspection and hope to avoid litigation? Codes are mostly about common sense, without which threats to the public welfare would be rampant. But how can we possibly hope to remember all of them? We can’t, and that’s where computers come in. Computers really are the ultimate answer when it comes to avoiding litigation, for they are first and foremost a mechanism of storage and retrieval. With a simple click of a mouse, you can discover how much and at what point a floor joist or header can be notched, what deviations in treads and risers constitute a trip-hazard, when and in what locations GFCI’s are required, and which consumer products have been recalled, and so on and so forth. Even industry standards and common sense disclaimers can be added to libraries that could already contain literally thousands and thousands of industry-standard narratives that cover just about every foreseeable circumstance. But let’s cut to the chase.

Everyday we are faced with decisions, and those decisions make each one of us who we are. We can seek advice from our families, our friends, our preachers, our rabbis, even our local guru or shaman, but ultimately the decisions that we make are our own. None of us would go on the message board and ask whether we should buy a Ford or a Chevy. I’m a Jaguar enthusiast myself, or an enthusiast of the early ones that were hand-built, but I certainly understand that not everyone is likely to share my view on this, or anything else for that matter. But if you’re interested in avoiding litigation, get yourself a computerized report-writer. It doesn’t matter which one you buy, just get one. Most have demo disks, which allow you to try them out, and the best offer a money-back guarantee. You’ve got absolutely nothing to lose and everything to gain, including valuable time, and if you think that you can’t afford one, you’re not charging enough for your inspections. Meanwhile, how many of you would like to see a NACHI policy statement on such issues as these?

[Russel Ray]

Originally Posted by kswift

None of us would go on the message board and ask whether we should buy a Ford or a Chevy. I’m a Jaguar enthusiast myself

That's a Ford.
Sorry.
Couldn't help it.
Darn margaritas.

Nice post.

[Roy D. Cooke, Sr]

Originally Posted by kswift

Most have demo disks, which allow you to try them out, and the best offer a money-back guarantee. You’ve got absolutely nothing to lose and everything to gain, including valuable time, and if you think that you can’t afford one, you’re not charging enough for your inspections. Meanwhile, how many of you would like to see a NACHI policy statement on such issues as these?

I like that idea to set up a policy statement .
. I also wonder why I and others ever got into such a libelous business.
To late for most of us and the new inspector seldom hears what we say.
It is to bad so many new inspectors give their inspections away.
They do not make a decent living and many do not not last in this business .
About 90% are gone in around three years from what I have seen in Ontario Canada.
I expect this is pretty close in other areas.

Roy Cooke . Royshomeinspection.com

[Keith Swift, PhD.]

I think that you're absolutely right, and I hope that others will agree. Just remember that a group of ordinary people on Flight 93 made one helluva difference. We can, and I think we will. Let's roll. Todd Beamer where are you?

[Keith Swift, PhD.]

Oops, that should read: "Todd Bremer."

[jferry]

Originally Posted by kswift

Oops, that should read: "Todd Bremer."

You had it right the first time: Todd Beamer.

[Keith Swift, PhD.]

Oh my God, caught in an error by an attorney. I'll never live this down.
Actually, someone told me after I'd posted that it was "Bremer," and I was foolish enough to believe them and too lazy to check my facts. And it wasn't an attorney that misinformed me. Thanks anyway, Joe.

[Keith Swift, PhD.]

On second thoughts, "policy statement," is too definite. Perhaps a phrase with the word "protocol" in it, which derives from words that mean "paper" and "glue," and means "an original draft," or "preliminary memorandum." That way it's not "official," so to speak. But, does anyone really care if we devise one, or what it's called if we do? Let me know what you think.

[Russel Ray]

I think it could prove useful.

[Keith Swift, PhD.]

This text is the start of a protocol for avoiding litigation, a protocol that could contradict our standards, and one that will never be finished. In its current format, it is neither definitive nor authoritative, and is not intended to be. So, add to it, if you wish, take from it what you can use, and share it with others. Keep in mind, this protocol has nothing to do with truth or justice; it’s all about avoiding litigation in any way possible.

Understanding the Threat
You are very likely to be involved in a lawsuit, the charges against you and the costs will be exaggerated beyond belief, and the lawsuit will likely be settled before it gets to court. Regardless, you and every other inspector that carries insurance will pay the costs in increased premiums. Like you, insurance companies are in the business of making money. However, you are not likely to be sued over a dripping faucet or a rusted water heater, for they can be replaced with new ones for a nominal fee. So pay particular attention to those “systems,” like grading and drainage and roofs, which generate very expensive lawsuits, and recommend a specialist evaluation for any thing that does not meet an absolute ideal. For instance, water is the enemy, and where water goes mold can follow. And believe me most attorneys can make mildew sound like the bubonic plague.

Industry Standards
Be proud of them, but don’t depend on them, and repeat their disclaimers at appropriate points throughout your report. Remember this, anyone can sue you without fear of being penalized for filing a frivolous lawsuit, and many will do so knowing that insurance companies are likely to roll-over and pay rather than defend someone who is innocent. Justice is an ideal, so don’t count on it.

Scope of work
It’s a good idea to describe exactly what you will and won’t be doing as part of your inspection, and as a corollary to the standards of practice. This is a document that could appear automatically in every report and one that can be continuously upgraded and polished. And don’t hesitate to include material that will educate your clients about common environmental contaminants, such as asbestos, radon, carbon-monoxide, lead and formaldehyde, etc, anything that might help you to avoid litigation or a nuisance call. I even attach a formal conclusion to my reports that warns of the threat that common household cleansers pose to small children, and I recommend that families complete a full safety check of the residence and practice an emergency evacuation. You’d be surprised how grateful people can be when they know that you’re looking out for their welfare.

Environmental Contaminants
The Consumer Product Safety Commission has published a number of potential indoor pollutants that could pose a health risk, and although health is a deeply personal responsibility some people would rather sue an innocent inspector than acknowledge this. Therefore, address every one of these potential contaminants in your report, and provide links to appropriate sites. If you don’t, you could be leaving yourself vulnerable to a lawsuit. For instance, although our inspections are “visual” and asbestos is certainly not visible, and can only be identified through the use of a polarized light microscope, and is wisely disclaimed in our standards, this didn’t stop hundreds of inspectors from being sued over asbestos.

Contracts and Clauses
Many contracts are regional or state-specific. Nevertheless, read as many of them as you can, borrow the best from all of them, then write your own in plain English, and make darn sure that it affords others the same treatment as you would expect for yourself. I favor including rational clauses that are required to be initialed, and which disclaim mold inspections, etc. Don’t worry if an attorney warns you that they may not be legally defensible. Who cares, as long as they’re reasonable and rational? The trick is not to win a lawsuit but to avoid it.

Marketing and Fees
I don’t market my business. However, the best stuff I’ve read about marketing has been on the message board. As to fees, inasmuch as we assume about ten times the liability of a geologists and structural engineers, we should charge accordingly. Of course, many new inspectors cannot get such fees, not initially at least, but we are worth at least the hourly fee of an attorney. Double your fee and lose half your inspections. Wouldn’t that be nice? I’ve consistently raised my fees over the years and will continue to do so. In fact, I did so again this morning.

The Number of Inspections for one Inspector on any Given Day
Even with the best tailored report-writers, two inspections a day for one inspector is a sensible limit. If you’re doing more, you’re probably not charging enough. Getting sued is a number’s game, and every inspection is a time-bomb waiting to go off within a statute of limitation. In California (La-la-land to be sure), it’s four long years, in which persons who have never contracted for the service can obtain reports and legally sue the inspectors who generated them.

Interviewing Clients
Talk to your clients, find out what they’re like, ask them what they do for a living, and what concerns they might have about their potential home. For instance, I’d rather learn about potential concerns regarding clean air and allergens on or before the day of my inspection than later in the form of a letter or lawsuit from their very expensive attorney. Besides, your clients are counting on you to represent them as conscientiously as you can. However, if for any reason I don’t like my clients I’ll politely decline the inspection, or find some compelling reason to leave and never come back. I’ve done it several times, and never regretted it. Who I work for is my business, and I’ve never done anything just for the money.

Real Estate Agents
Treat them with respect, tell them how long your inspection is likely to take, and when your report will be available, and in what form, request a copy of the Transfer Disclosure, or similar document, and remember that your responsibility is solely to your clients. Trying to assist a real estate agent in “closing the deal” is unethical and risky, at best.

The Use of Specialized Equipment
I favor the use of specialized instruments, and particularly the use of a camera, which documents existing conditions beyond dispute. Other instruments allow me to do a more comprehensive inspection/investigation, and I’m convinced that my laser level, for instance, has saved me from three or four lawsuits. Besides, although we classify ourselves as “generalists,” most of us are much closer to being “specialists,” as well we should, as long as we charge accordingly.

Reporting Styles
There are too many types to name, and the best is probably the one that you’re using. All change is difficult. Tradition, or the way we’ve always done things, is one of the tests for truth, and most of us need a lot of convincing to change. However, when it comes to inspecting, most of the things that we report on are commonplace things that we see every day: we recommend that countertop outlets be upgraded to have ground fault protection, that steps with three or more risers have handrails, that water heaters be installed over drip-pans, that a crack in a chimney be evaluated by a specialist, and so on and so forth. Therefore, a computerized report-writer is the foremost means of avoiding litigation. It is a mechanism of storage and retrieval that allows you to retrieve relevant and sometimes detailed and complicated information with a single click of a mouse. And it can save you hours and hours of time. If you don’t have a computerized report-writer, sample them all, and get one. The best offer a thirty-day full money back guarantee. You won’t regret it. Getting rid of your old reporting style can be a little like getting a divorce; it takes a little getting used to, but it’s almost always worth it.

Handling Complaints and Nuisance Calls
Respond as fast as conveniently possible. Take the attitude that you want to placate and please, not argue. I’ve paid to have things repaired that were specifically identified in my report as needing service. I’ve had a ‘slush fund” for years and, if the cost of repairing something is less than my deductible or will keep me out of court, I’m going to pay, plain and simple. Why? Because in the words of an ancient Chinese axiom: “A judge decides for ten reasons, nine of which nobody knows.”