Lost inspection due to agreement

[dharris]

Originally Posted by dduffy

I agree, reading the whole P4. If I was the buyer I would have had it scratched or walked also. As a matter of fact it's ridiculous..!!

If the inspector cannot inspect a home without worrying about missing all kinds of crap and does a terrible inspection he deserves to be sued.

"Limited to the fee paid for the inspection"----unfreaking real...!!

Hey Dale.. How are you doing?
I understand liminting to fee paid has stood up here.

I sure don't support it for the simple reason, if an inspector believes he can simply get off the hook by having simular disclosures, why would he feel it's necessary to spend the extra time on the job, and $s to get the best CE he can to provide the customer the most thourgh and best report he or she can.
Heck with those disclosures standing up, why not do 4-5-6 inspections a day and take your chances of have to refund a couple inspection fees a month.

[Dale Duffy]

It would be an embarrassment to me personally, which is why I would NEVER ask someone to sign something so ridiculous.

If I miss something I DESERVE to be sued...!!!

[relliott]

$99 run through Inspection.

[Dale Duffy]

Originally Posted by relliott

$99 run through Inspection.

Kind of like those walk and talk inspections (some people talk about) huh Bob.....I don't think so, put on paper, with PICTURES..!!

AND DON"T MISS ANYTHING...!!

If it takes ALL DAY to do a perfect job, so be it......!

[Kevin Luce]

I want to an ASHI meeting about 4 or 5 years ago in Chicago and they had a lawyer speaking. Even though I informed him that it was unlikely that that part of the contract would hold not up in Indiana, the lawyer did inform me that it has held up in Illinois.

That is what he was telling everyone at the meeting.

[Dale Duffy]

4. Limitation On Liability: As per the scope of the inspection Inspector's liability in this inspection and report is limited to a refund of the fee paid for this inspection and report. The Liability of inspector's principals, agents and associates is also limited to the fee paid. This limitation applies to anyone damaged or expenses of any kind incurred due to errors or omissions in this inspection and report. This liability limitation is binding on client, client's spouse, heirs, principals, assigns and all others who may otherwise claim through client. Client assumes the risk of all losses greater than the fee paid for the inspection. Client agrees to accept a refund of the fee as full settlement of any kind and any and all claims, which may arise from this inspection.

So if the client has to buy a condenser, and the roof needs repair because the inspector missed it the buyer gets his 250 bucks back......I would be SO embarrassed to even show someone this statement I would find another line of work if it was required.

[Dan Bowers, CMI]

To those young inspectors in the crowd, that apparently have not been around very long or may be slow thinkers - the limitation of liability to a set amount (the fee paid, 2x the fee, $1,000, etc) is a standard part of most real estate inspectors contracts ANYWHERE I've ever been in the USA (Florida, Texas, Missouri, Kansas, Colorado, Arkansas, Illinois, etc). Whether a court UPHOLDS it is up to a Judge (its a precedent NOT a mandate). Sometimes a judge determines this suit is frivilous or without merit AND upholds the clause - sometimes he does not.

I've never looked at it as a "If I miss something, way to get out of paying". I've always looked at A LIMIT of LIABILITY Clause as a way to help PROTECT some poor smuck home inspector from all the riff-raff, gutter-trash in the world that hired us to inspect a home for $250 - $300; then 6 months or 1 year later repaneled the family room / found hidden mold or termites INSIDE the wall cavity AND tried to sue us because we lacked X-ray vision AND couldn't see inside the walls.

Going out without it, is like going into a gunfight without your bullet-proof vest - stupid to the Nth degree. Any questions!

[Brian A. MacNeish]

Originally Posted by dduffy

I agree, reading the whole P4. If I was the buyer I would have had it scratched or walked also. As a matter of fact it's ridiculous..!!

If the inspector cannot inspect a home without worrying about missing all kinds of crap and does a terrible inspection he deserves to be sued.

"Limited to the fee paid for the inspection"----unfreaking real...!!

I'm with you 100% on this, Dale. I feel the "waiver clause" is totally unprofessional. "Here, clients, .......yes, I can inspect your new home but I'm not so sure I can do a good job........sign this so you can't sue me when I f--k up!!"

Have been inspecting full or part-time for 27 years, have never had a waiver clause and have never been sued personally. The company had one suit against it in 1987 when I had a partner for an inspection he did. I went to court for the company as he had moved out of the area (so the guy who wasn't even at the inspection, me, was the defense witness). The judge awarded the clients 10% of their claim, about $1150.00 for a basement leak even though his report mentioned he found water in the basement.

If you can't do the job without the waiver clause, find another profession. You'll sleep better!!

[Blaine Wiley]

The attorney that wrote my agreement had a simple statement about the limitation of liability clause. "If it is in the agreement it may not hold up in court, but if it isn't in the agreement it definitely will not hold up in court".
He further stated some reasons to have it, including that if someone won't sign the agreement with it in there it is a good way to weed out someone who wants you to guarantee everything in the home for as long as they live there.

Remember, it isn't "if" you miss something, it's "when" you'll miss something. It may happen in your first year, your tenth or your thirty first...

[klott]

[quote=dduffy;447822]It would be an embarrassment to me personally, which is why I would NEVER ask someone to sign something so ridiculous.

If I miss something I DESERVE to be sued...!!![/quote]
That's a little over the top Dale, everybody makes a mistake sometime, they should not automatically be sued for it!

[klott]

Originally Posted by bwiley

The attorney that wrote my agreement had a simple statement about the limitation of liability clause. "If it is in the agreement it may not hold up in court, but if it isn't in the agreement it definitely will not hold up in court".
He further stated some reasons to have it, including that if someone won't sign the agreement with it in there it is a good way to weed out someone who wants you to guarantee everything in the home for as long as they live there.

Remember, it isn't "if" you miss something, it's "when" you'll miss something. It may happen in your first year, your tenth or your thirty first...

Exactly, and wouldn't it be a shame, if in your 31st year, you lost more than you had made during those 31 years! There are many out there, just waiting for you to make a mistake.

[Kevin Luce]

I have a hard time believing that somebody lost everything they made in the 31 years (31 years representing a lot of money) from one lawsuit just because they didn't have P4, or something similar, written in that contract.

If that wording has the potential to prevent a lawsuit (which in most cases would go to arbitration), it's surprising that similar thinking would not be applied to other contracts.

As a buyer, I would have a hard time hiring any company that would tell me:

"If I miss something or screw up, I'll give you back the cost of the fee."

Or wait, let's make the contract better for the client.

"If I miss something or screw up, I'll give you back 2X the cost of the fee."

$300 dollars to correct something that was clearly missed that will cost over $1000 is silly. Why not just put in the contract that you will not be responsible for any mistakes? It's basically the same.

In my opinion, the only time the cost of the inspection should be returned is if they didn't have any problems that should have been discovered at the time of an inspection and the new owners realized that you didn't inspect anything.

Would any home inspector hire another home inspector to inspect a house they were buying with that wording in it. You know my answer.

[David A. Andersen]

OK, I don't have all the facts on this one, but...

I was told by an atty that this clause has to do with contract law and not negligence.(?)

The first reason this defence gets shot down is because you will always see the complaint worded as you being negligent.

Something like, if you made a mistake in reporting/inspecting the limitation may hold.
Example: You forgot to inspect/report a required inspection element. The client was not really hurt from the lack of this information, other than you did not fill your contractual obligations.
If they show you are negligent (you wilfully failed to do your job) resulting in this mistake, there is no LOL.

This obviously is a fine line thing (and I don't conceptualize it well in our case).

Anyway, just like the lawyers drag everyone connected into the case, it's very easy to just claim your "negligent" and hash it out in court later. They don't show how your negligent in the complaint, that just state you were negligent.
It will trip you out sometimes! As you go through the complaint, it's like they must be talking about someone else because nothing applies to you or the known facts.

[klott]

Originally Posted by Kevin Luce

I have a hard time believing that somebody lost everything they made in the 31 years (31 years representing a lot of money) from one lawsuit just because they didn't have P4, or something similar, written in that contract.

If that wording has the potential to prevent a lawsuit (which in most cases would go to arbitration), it's surprising that similar thinking would not be applied to other contracts.

As a buyer, I would have a hard time hiring any company that would tell me:

"If I miss something or screw up, I'll give you back the cost of the fee."

Or wait, let's make the contract better for the client.

"If I miss something or screw up, I'll give you back 2X the cost of the fee."

$300 dollars to correct something that was clearly missed that will cost over $1000 is silly. Why not just put in the contract that you will not be responsible for any mistakes? It's basically the same.

In my opinion, the only time the cost of the inspection should be returned is if they didn't have any problems that should have been discovered at the time of an inspection and the new owners realized that you didn't inspect anything.

Would any home inspector hire another home inspector to inspect a house they were buying with that wording in it. You know my answer.

You must have missed the, "if" in my sentence, it was just a speculative statement.

[James H. Bushart]

In reading the views of inspectors (some of whom I hold in high regard) who oppose the limitation of liability to the inspection fee, I am compelled to respond.

Limitations of liability are common instruments used by a variety of folks under various circumstances and always....always...allows the party who is uncomfortable with that limitation to choose another person to do business with.

With average inspection fees in today's market in many areas running in the $250 to $300 range, why should we be carrying the same liability that a real estate agent carries for their fees of 7% of a $300,000 sale?

Along with these statements of limited liability is the more important statement that help these limitations make sense....that is, the inspection report is not a warranty. Those expecting it to be would be justified in their objection to such limitations.

What I sell is simply a report that describes the present condition of the various systems of the home...all of which are subject to change the moment I pull out of the driveway. My report is a snapshot of the conditions that were present while I was present...and does not reflect in any shape or form what will or will not happen in the future.

With that understanding, I have not had anyone reject a limitation of liability clause since including it in my contract for five years. Nor have I had anyone expect me to cover the cost of a failed component. Limited liability is another very effective means of establishing a client's expectations to what a home inspection actually is and if they are looking for more than that...as this attorney obviously was...they are free to shop around for someone willing to offer more.