Lawsuit vs Texas Inspectors

[James H. Bushart]

Homeowners' suit claims inspector failed to detect mold

5/14/2009 4:00 PM
By Kelly Holleran

Two Jefferson County individuals say the home inspection company they hired before they bought their home failed to identify mold growing within the house.

Cole and Latisha Landry filed a lawsuit May 12 in Jefferson County District Court against Louis Ashy, doing business as Pillar to Post.

The Landrys claim they asked Ashy to inspect a home located at 677 Ridgewood in Port Neches on Dec. 8.

"Defendant was to inspect the property and indicate the items in need of repair or not functioning and report on those applicable items," the suit states.

Ashy failed to detect mold growing on the home's HVAC unit, the complaint says.

Only in mid-January, after the Landry's move-in date of Jan. 9, did they find the visible mold growth throughout the HVAC cabinet. Visual water marks could also be seen on numerous locations in the cabinet, the Landrys say.

After finding the mold, the Landrys hired an environmental consulting and testing professional and learned that concentrations of various molds were identified in air samples, according to court documents.

"The inside samples held concentrations of Penicillium/Aspergillus were greater in the HVAC closet and the children's bedroom," the suit states.

Ashy was guilty of negligently failing to adequately inspect the property and of failing to state in his report there were visible signs of water marks and suspected mold growth in the HVAC closet, the complaint says.

The Landrys are seeking unspecified treble and discretionary damages of less than $50,000, plus attorney's fees, costs and other relief to which they may be entitled.

Brandon P. Monk of The Monk Law Firm in Port Arthur will be representing them.

The case has been assigned to Judge Donald Floyd, 172nd District Court.

Jefferson County District Court case number: E184-045.


(I wonder if the Ashy's belong to ASHI....)

[James H. Bushart]

What I find to be significant is that the state with the oldest (and some within the state who sleep with copies of it, consider it to be the best) home inspection licensing law in the books.....still uses the court to settle disputes.

In this case....as in many, many, many others....licensing did nothing to ensure a quality inspection, did nothing to protect the consumer, and offered no satisfactory recourse to the consumer to be made whole.

The state governed SOP did nothing to address the needs of this consumer....and still fails to protect the inspector from litigation.

HI licensing laws in every state should be repealed.

[Brian E. Kelly]

Having an License, or not having a License, has no bearing whatsoever on lawsuits.

[James H. Bushart]

I agree, entirely.

That is what makes the proponents of licensing laws look like idiots as they proclaim that the lack of a law leaves the consumer helpless. With a law or without a law....the option for litigation remains.

[Mark Nahrgang]

Who opens the AC cabinet? That's not under any SOP that I'm aware of.

[James H. Bushart]

This lawsuit is a result of the Texas real estate commission (who rules home inspectors) decision to mandate E&O insurance for inspectors.

Now, the SOP can be disregarded and the client can file the suit with the understanding that the insurance carrier will be likely to settle. Prior to mandatory E&O, there would have been no incentive for such a frivolous suit.

[Brian E. Kelly]

Originally Posted by jbushart

I agree, entirely.

That is what makes the proponents of licensing laws look like idiots as they proclaim that the lack of a law leaves the consumer helpless. With a law or without a law....the option for litigation remains.

Maybe James, Maybe not. I have in the past been led to believe that a Licensed Standard would reduce the possibility of lawsuits, as long as one adheres to the Standard. From my personal experience I know that not to be entirely true.

But on the other hand, I still believe that in an unlicensed State on would still be more likely to get into even more trouble with regards to lawsuits.

But, like HI E&O Insurance salesmen before me, I have no credible evidence to back up my BELIEFS.

[Brian E. Kelly]

Originally Posted by jbushart

This lawsuit is a result of the Texas real estate commission (who rules home inspectors) decision to mandate E&O insurance for inspectors.

Now, the SOP can be disregarded and the client can file the suit with the understanding that the insurance carrier will be likely to settle. Prior to mandatory E&O, there would have been no incentive for such a frivolous suit.

And like me you have no credible evidence to back up this BELIEF.

[James H. Bushart]

Originally Posted by bkelly2

Maybe James, Maybe not. I have in the past been led to believe that a Licensed Standard would reduce the possibility of lawsuits, as long as one adheres to the Standard. From my personal experience I know that not to be entirely true.

But on the other hand, I still believe that in an unlicensed State on would still be more likely to get into even more trouble with regards to lawsuits.

But, like HI E&O Insurance salesmen before me, I have no credible evidence to back up my BELIEFS.

Missouri, like Alberta, are unlicensed and under attack from those who insist upon the need for licensing.

Missouri has several hundred (exact number unknown) home inspectors and have had 6 BBB complaints in five years. Alberta has 225 home inspector businesses and have had 18 BBB complaints in four years.

Though there is no demonstrated need for licensing, those who want to control others (mostly for their own financial gain) work hard at convincing the public of their need for such a law. Often used by the Missouri legislator who the lobbiests pay to write and introduce this legislation is his mantra that consumers have no where to go when they get a bad inspection.

So far...the only consumer advocacy group to go on the record has opposed such legislation.

[John McKenna]

Originally Posted by mnahrgang

Who opens the AC cabinet? That's not under any SOP that I'm aware of.

Texas requires that you open the Inspection panel on the HVAC unit.

The law cannot stop anyone from doing wrong, but it can be used
to punish the wrong doer or protect those who are innocent.

Home inspector requirements for training are better than letting
a hair dresser inspect houses the day after he gets laid off.

No law is perfect. Weak laws produce weak results. Stronger
laws produce stronger results. The most recent SoP was
written by home inspectors, not Realtors.

We don't allow walk by and undocumented inspection here in
Texas, like James does, in his location. I understand why James
would not like that to change.

If you inspect the house and there is mold, even if you are not a
mold inspector, you can be held liable for the moisture that led
to the mold (and thus get hit for the whole thing).

My advise... buy a moisture meter, IR camera and stop being
afraid of making the realtor mad and write a hard report.

I am sorry to see a fellow inspector get in trouble, but it happens.

[Mark Nahrgang]

What exactly is being referred to here? I'm not talking about opening the furnace to the burners. Is that what they are talking about? When they said he didn't open the cabinet I'm thinking the condenser cabinet. Someone please set me straight about what this guy did wrong.

[John McKenna]

Originally Posted by mnahrgang

What exactly is being referred to here? I'm not talking about opening the furnace to the burners. Is that what they are talking about? When they said he didn't open the cabinet I'm thinking the condenser cabinet. Someone please set me straight about what this guy did wrong.

We have to remove the inspection panel on the HVAC unit.
It usually slips off and snaps back into place when done.

OK?

[Brian E. Kelly]

We are supposed to remove these Mark.

http://azbtr.gov/regulations/home_inspectors.asp

Readily Openable Access Panel:
A panel provided for homeowner inspection and maintenance that has removable or operable fasteners or latch devices in order to be lifted off, swung open, or otherwise removed by one person, and its edges and fasteners are not painted in place. Limited to those panels within normal reach or from a 4-foot stepladder, and which are not blocked by stored items, furniture, or building components.

[Mark Nahrgang]

HVAC = Heating, Ventilation and Air Conditioning.

Therefore what "panel" are you talking about. There are panels all over. I personally remove the panel on the furnace to examine the burners and gain access to the model & serial number label.

Maybe you have a picture of what you are talking about?

[Brian E. Kelly]

That is pretty much what I do Mark, and look into the return air compartment.

I believe missing water stains and or organic growth would be hard to do.