Lost inspection due to agreement

[jvogan]

Anyone can be sued at any time for any thing...no matter WHAT it says in your contract. As stated earlier, it will be decided by a judge what is upheld or not. But I think that the LOL clause can be effective in "weeding out" someone wanting a warranty for anything that goes wrong with their house for the next 10 years. They are looking for someone up front to sue for anything, and if the clause causes them to look for another inspector, more power to them. But don't think that because the clause is in there that you are necessarily covered to limited liability. You are not.

[Kevin Luce]

Originally Posted by klott

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

I didn't miss the "if". I was saying that even if that person worked 5 years, 10 years, 20 years or so forth, I don't think the wording we have been talking about is going to stop somebody from winning the case (Potentially equaling or exceeding the amount that home inspector earned over those years) but limiting the amount the home inspection company has to pay out to only the cost (or twice the cost) of the home inspection.

O-well, the way I look at it is that the wording doesn't hurt anything unless you lose a job(s) from it. If people are willing to sign that contract (which I found most people don't read including lawyers that I do home inspections for), then that is their choice.

[klott]

I don't expect the clause to protect me from anything in a court of law, but, I do believe it can be used as an deterent. As several judge's were the first to admit, that if you come to court expecting Justice, you will leave very disappointed!

[rmaday]

Originally Posted by jvogan

Anyone can be sued at any time for any thing...no matter WHAT it says in your contract. As stated earlier, it will be decided by a judge what is upheld or not. But I think that the LOL clause can be effective in "weeding out" someone wanting a warranty for anything that goes wrong with their house for the next 10 years. They are looking for someone up front to sue for anything, and if the clause causes them to look for another inspector, more power to them. But don't think that because the clause is in there that you are necessarily covered to limited liability. You are not.

Agreed. It actually may minimize "risk" rather than liability.

[Steven C. Meyer]

There are many examples of limitaion of liability in every day life situations, and I find in that in most caes they stand up. Ever rent a truck? a Car? tools? Equipment?

In all those cases, liability is limited to the cost of the rental, no matter that rental agency did or did not know the equipment was faulty. Hate to tell ya the amount of times I have had equipment delivered that did not function properly, costing a great deal of money in time down waiting for them to get me working equipment. This is true in many other areas of commerce.

As to the orginal case in point, if the client (an attorney) wants that portion of the agreement crossed out, I would run like hell from the job, as you know then, that he WILL be looking for a reason to sue.

Many a years ago, I did a bid (as a generasl contractor) for a potential client (who turned out to be an attorney). He was happy with the bid, BUT he wanted to know the amount of insurance coverage I carried above and beyond the state mandated minimum,AND wanted to look over my policy in full!!! Needless to say, a huge red flag started flying, and I declined to not only not show him my policy but not do the job!!!

In over 30 years of contracting, I have never been sued, and the only receivable I ever wrote off was from (guess who??) an attorney!!!

So, I would leave in the limit of liability in my contract and let the courts decide on a case by case basis the validity of the contract, and of course, have insurance as a back up!!!!

For self preservation, I think that the turning doiwn of this client was a smart move. Why take the chance for lousy few hundred dollars, which could cost you thousands???!!!

[Kevin Luce]

Originally Posted by Steven C. Meyer

For self preservation, I think that the turning doiwn of this client was a smart move. Why take the chance for lousy few hundred dollars, which could cost you thousands???!!!

I guess people can look at this in two ways. A red flag when a potential client wants to remove it or the home inspector having that wording in their contract.

Personally, I think the inspector having it in their contract is a bigger red flag than the potential client actually reading the contract and seeing where that wording could lead (client understanding what they just read without knowing the law) and asking it to be removed.

I can see many people thinking that if they sign that contract, the home inspector/company is basically (basically = the cost of the inspection) off the hook and the buyers will get stuck paying for something that home inspector should have called out but didn't.

To each their own.

[Dan Bowers, CMI]

Let me think about all the UN-PROFESSIONAL people or businesses that had me sign release of liability forms to do business with them. They did not limit their liability to the fee paid - They said they had NO LIABILITY.

The doctor doing my lasik surgery; the school before taking my grandson on a school outing; the United States Marine Corps before taking retired Marines on a tour of the base; the surgeon straightening my deviated nasal septum; the cardiac surgeon doing my heart bypass; etc.

Or how about the home warranty company that sold me a 1 yr warranty on all the mechanical components in my house for $445 - then when I read the fine print, it says the most they're liable for is $2,000 p/yr.

Get real girls - We're not insurance, just a general physical.

My clients can get "NO LIMIT of LIABILITY" and a 1 yr warranty - but they gotta be Big Boys and Big Girls and pay me for my RISK. With me its 1% of the sales price OR $2,950 / whichever is MORE.

I may walk Niagara Falls on a tightrope without a net - IF THE PRICE IS RIGHT - but $300 does not get me to take the risk.

[Kevin Luce]

Originally Posted by dbowers

Let me think about all the UN-PROFESSIONAL people or businesses that had me sign release of liability forms to do business with them. They did not limit their liability to the fee paid - They said they had NO LIABILITY.

The doctor doing my lasik surgery; the school before taking my grandson on a school outing; the United States Marine Corps before taking retired Marines on a tour of the base; the surgeon straightening my deviated nasal septum; the cardiac surgeon doing my heart bypass; etc.

Or how about the home warranty company that sold me a 1 yr warranty on all the mechanical components in my house for $445 - then when I read the fine print, it says the most they're liable for is $2,000 p/yr.

Get real girls - We're not insurance, just a general physical.

My clients can get "NO LIMIT of LIABILITY" and a 1 yr warranty - but they gotta be Big Boys and Big Girls and pay me for my RISK. With me its 1% of the sales price OR $2,950 / whichever is MORE.

I may walk Niagara Falls on a tightrope without a net - IF THE PRICE IS RIGHT - but $300 does not get me to take the risk.

Your not comparing apples with apples.

In General, the courts look at what is considered reasonable. Paying $300.00 on a repair that the courts considers you responsible at $12,000 is not considered reasonable. I think that's the reason why that part of the contract has not held up in the courts (at least around here).

When it comes to reducing the chance of getting sued, most of the time around here, the buyer includes the seller. The home inspector for not reporting it on the home inspection report and the seller for not disclosing it on the required disclosure form. So I think they go to a lawyer to sue the seller and that's when the lawyer informs the buyer to sue the home inspector/company and not to worry about that part of the contract.

Just my conclusion from information my wife saw from when she worked for a lawyer.

[Dan Bowers, CMI]

Actually I am comparing apples to apples.

WE ARE NOT a buyers "Cradle to Grave Insurance Policy". Never have been - Never will be.

Just like buying a used car from a dealer - My clients have a choice.

Do you want the house AS IS, with a LIMIT of LIABILITY to the fee paid, OR Do you want a 1 Yr Warranty without LIMIT of LIABILITY.

On yesterdays inspection they could have Choose #A and the fee is $389

OR they could

Choose #B and the fee is $3,850

They chose #A. If we ever went to court, I'm comfy knowing they chose to go bare-***** naked into the future.

"Your Honor, as the Inspection Agreement clearly shows Betty & Herman were offered an Inspection without a LIMIT of LIABILITY and a 1 Yr Warranty but DID NOT want to spend the money, BUT now that ..... has gone bad they'd like to have someone else pay for THEIR mistake".

Think about it girls ....... DO NOT let yourself become a Rape Victim.

If they can afford to pay a RE Agent 3% - 6% for acting as a Taxi Driver, Tour Guide and Showing them where to sign their name on papers - they can pony up 1% for us OR take a LIMIT of LIABILITY

[rmaday]

Originally Posted by dbowers

Actually I am comparing apples to apples.

WE ARE NOT a buyers "Cradle to Grave Insurance Policy". Never have been - Never will be.

Just like buying a used car from a dealer - My clients have a choice.

Do you want the house AS IS, with a LIMIT of LIABILITY to the fee paid, OR Do you want a 1 Yr Warranty without LIMIT of LIABILITY.

On yesterdays inspection they could have Choose #A and the fee is $389

OR they could

Choose #B and the fee is $3,850

They chose #A. If we ever went to court, I'm comfy knowing they chose to go bare-***** naked into the future.

"Your Honor, as the Inspection Agreement clearly shows Betty & Herman were offered an Inspection without a LIMIT of LIABILITY and a 1 Yr Warranty but DID NOT want to spend the money, BUT now that ..... has gone bad they'd like to have someone else pay for THEIR mistake".

Think about it girls ....... DO NOT let yourself become a Rape Victim.

If they can afford to pay a RE Agent 3% - 6% for acting as a Taxi Driver, Tour Guide and Showing them where to sign their name on papers - they can pony up 1% for us OR take a LIMIT of LIABILITY

Any chance to post or email that clause?

[kpierce]

Why was this lawyer asking to have the clause removed if it's common knowledge that it doesn't hold up in court? The answer is that it may hold up in court so why not have it in there?

[rmaday]

Originally Posted by kpierce

Why was this lawyer asking to have the clause removed if it's common knowledge that it doesn't hold up in court? The answer is that it may hold up in court so why not have it in there?

Or possibly (probably) not a very good lawyer.

My guess is any lawyer worth his salt wouldn't care what's written in our agreements, he'd sue anyway and take his chances looking for a settlement.

[Kevin Luce]

Many lawyers specialize in certain areas of law and may not be familiar with areas of law they normally don't practice. I would never ask a lawyer that deals with estate planning to represent me in a DUI.

Originally Posted by kpierce

Why was this lawyer asking to have the clause removed if it's common knowledge that it doesn't hold up in court? The answer is that it may hold up in court so why not have it in there?

I never wrote that it was common knowledge. I wrote that I don't think that this type of limitation should be used and that there is no case (that I am aware of) in the state of Indiana that has ever allowed that part of the contract to be enforced. Every state is different and like I wrote, a lawyer from an ASHI meeting in Illinois did say it has been enforced in that state.

If I were going to use that limitation in my contract, I would just put down Zero dollars ($0). Who came up with the cost of the home inspection or 2X the cost of the home inspection? What, if you give them the cost of the home inspection back it's like the inspection never took place?

[John Cahill]

I would have asked him what liabiltiy he wanted me to accept for the fee.

I have done jobs like this. The report shredded the home and had copius supplemental expert recomendations. I even recommended all the furnitiure be moved out and him hire me to come back. Kind of a risky bit of fun.