Texas lawsuit update

[Michael R. Boyett]

According to a memo (see attached pdf file) from the mediator to the Harris County District Court the Fox Inspection Group –vs- Maze inspection lawsuit apparently has been settled through mediation. Details of the settlement have not yet been filed with the court as of 5/20/10. I’ll post that information if & when it is available. I assume the court has to agree to or approve of the mediation settlement but I suspect that’s a formality.

For more details of the lawsuit see this thread from earlier.

Mediation.PDF

[Chuck Evans]

It will be interesting to hear the ultimate outcome. I hope it turned out well for Fox and Santillion. I think the plaintiff lost the premise of his argument when opinion letter from the Texas Board of Professional Engineers came out (great find John)

Also, those inspectors who predict dire consequences for making any kind of reference to model building codes because it may be construed as a code compliance inspection should read the affidavit from Fred Wilcox regarding the inspection report being contested and his comments regarding the code references.

This whole thing has been a real eye opener for me. I'm still trying to figure out what takeaways I can glean from it to try to minimize my own exposure to this type of action.

[John Onofrey]

Originally Posted by cevans

It will be interesting to hear the ultimate outcome. I hope it turned out well for Fox and Santillion. I think the plaintiff lost the premise of his argument when opinion letter from the Texas Board of Professional Engineers came out (great find John)

Also, those inspectors who predict dire consequences for making any kind of reference to model building codes because it may be construed as a code compliance inspection should read the affidavit from Fred Wilcox regarding the inspection report being contested and his comments regarding the code references.

This whole thing has been a real eye opener for me. I'm still trying to figure out what takeaways I can glean from it to try to minimize my own exposure to this type of action.

Chuck thanks for the Kudos, where can I find Fred's affidavit?

[Michael R. Boyett]

I'll send it to you John. It's nothing of consequence in my opinion.

[Chuck Evans]

Originally Posted by mboyett

I'll send it to you John. It's nothing of consequence in my opinion.

What I found most noteworthy was that Fred discussed the model code references in the context that they supported the requirement of the inspector to provide a reason that he felt there was a deficiency.

This runs contrary to the inspector urban myth that if you include any reference to model codes, you will be sued for not having called out all of other code compliance issues in the house. This is an example where references to model codes was actually used in an argument in the inspector's favor.

[Jim Hime]

I usually don't post but I couldn't pass up Chucks comment as Chuck is also a inspector for FIG (Fox) and is a very conscientious inspector. Chuck generally includes code sections as a reference in the report examples I've seen.

(IMO) I agree with Mr. Willcox in his affidavit (attached). I've always provided references (NEC, SBCCI, UBC, IRC, TDI, etc.) depending on the properties location) for many items I may encounter. Without a reference I could claim it is your "preference or personal opinion" for reporting an item in need of repair or of being deficient. The code book library I've collected goes back 34 years with almost every issue. There's not that many changes I've seen based on commonly found inspection items (except NEC - GFCI & AFCI's) over 22 years of home building and inspecting. Basically none in structure except for 110 m.p.h. or greater wind speeds.

No, not every home passed city inspection when it was built. A lot of homes are built in the county and then cities may annex those areas (at least where I am from) or, they are still in the county. I still check the tax records to see if the home is in the county or a city before I inspect it. So, if you are selling your home and claim it met city codes 24 years ago but you are the fourth owner of the home I guess my client wants to know how you know the home met city code.

This year I have been adding the TREC SoP "code" sections as much as possible to my reports as well. So, argue with the SoP; not with me. Even the TREC states that the newest SoP - "more accurately reflect current technology, codes, and practices that form the basis of many of the standards."

I'm not posting to look for an argument of whether to add references or not.
I don't care what others do or don't do.

Mr. Willcox's affidavit is attached (I hope it attached). The full documentation of the "Texas lawsuit" is available on the Harris County Court Clerks web site except the mediated settlement.

http://www.hcdistrictclerk.com/eDocs/Public/Search.aspx
Plaintiff - MAZE
Defendant - FIG

[Jim Hime]

I usually don't post but I couldn't pass up Chucks comment as Chuck is also a inspector for FIG (Fox) and is a very conscientious inspector. Chuck generally includes code sections as a reference in the report examples I've seen as do the rest of the "figgies" and other inspectors I know.

(IMO) I agree with Mr. Willcox in his affidavit in providing documentation references. I've always provided references (NEC, SBCCI, UBC, IRC, TDI, etc.) depending on the properties location for many items I may encounter. No, it's not a code inspection. (Read on) Without a reference I could claim it is your preference or personal opinion for reporting an item in need of repair or of being deficient. The code book library I've collected goes back 34 years with almost every issue. There's not that many changes I've seen based on commonly found inspection items (except NEC - GFCI & AFCI's) over 22 years of home building and inspecting. Basically none in structure except for 110 m.p.h. or greater wind speeds.

No, not every home passed city inspection or met code when it was built. A lot of homes are built in the county and then cities may annex those areas (at least where I am from) or, they are still in the county. I still check the tax records to see if the home is in the county or a city before I inspect. So, if you are selling your home and claim it met city codes 24 years ago but you are the fourth owner of the home I guess my client wants to know how you know the home met the code.

This year I have been adding the TREC SoP "code" sections as much as possible to my reports as well. So, argue with the SoP; not with me. Even the TREC states that the SoP - "more accurately reflect current technology, codes, and practices that form the basis of many of the standards."

With each TREC code section I can cross reference the NEC, SBCCI, UBC, IRC, etc. collectively so....... no, it's not a code inspection. It's a SoP inspection whereby the SoP has been based on the codes.

The IRC is usually the favorite because if a repair is warranted there is no "grand-fathering" under Texas SB 365. A repair has to meet the IRC.

I'm not posting to look for an argument of whether to add these references or not. I don't care what others do or don't do.

Mr. Willcox's affidavit is available as well as the full documentation of the "Texas lawsuit" on the Harris County Court Clerks web site except the mediated settlement. I was going to upload the affidavit but it is 4.9MB PDF file and thought too much to store on the NACHI server.

http://www.hcdistrictclerk.com/eDocs/Public/Search.aspx
Plaintiff - MAZE
Defendant - FIG

[John Cahill]

Originally Posted by cevans

What I found most noteworthy was that Fred discussed the model code references in the context that they supported the requirement of the inspector to provide a reason that he felt there was a deficiency.

Where does 535.228 require an inspector to provide a basis for the opinion regarding roof framing . . . . or anything? Show me the words.

[Chuck Evans]

Originally Posted by jcahill

Where does 535.228 require an inspector to provide a basis for the opinion regarding roof framing . . . . or anything? Show me the words.

John,

There are about a hundred different ways that you could have chosen to say that you have a different opinion or that you think I misspoke, any of which would have produced a constructive response. You managed to chose one of the few that wouldn't so PISS-OFF!

I don't usually respond to demands but here you go, as requested from RULE §535.228

(3) generally report present and visible indications used to render the opinion of adverse performance, such as:

Now the real point of my post was in reference to Fred's affidavit and not the Texas Administrative Code. Specifically, I was referring to the paragraph below and others which were similar in essence.

[Jim Hime]

Originally Posted by cevans

I don't usually respond to demands but here you go, as requested from RULE §535.228

Now the real point of my post was in reference to Fred's affidavit and not the Texas Administrative Code. Specifically, I was referring to the paragraph below and others which were similar in essence.

I was also referring to the Affidavit which quoted 535.228 as indicated under oath by Mr. Willcox (for FIG) and backed up, under oath, by the plaintiff's expert witness (P.E.). Wow, in all my previous testimony the plaintiff and defendant experts never agree. In this case they did so now we have a precedent?

Maybe I should have uploaded the (4.9MB) Affidavit for others to read.

I'll probably grab some heat but I am a believer that TREC should spend some time educating inspectors about the basic mechanics of the SoP and history thereof before a Commentary is attempted. If we don't understand the basics of the SoP (and what to include into reports) how are we to graduate to a Commentary or even answer questions such as this one has brought? Dang it, I now have to agree with Mr. Willcox for the second time in 20 years. Texas is known to have the most advanced standards in the nation but it takes litigation to find out what they means? Who does that help?

(take a deep breath and squeeze your little finger tip)

[Michael R. Boyett]

Originally Posted by cevans

(3) generally report present and visible indications used to render the opinion of adverse performance, such as:

I think the issue is that wording only pertains to foundations. No other section of the TREC SOP requires that yet FW's affidavit seems to indicate otherwise. It is my opinion that an inspector's reasonable judgment is enough to support items listed as deficient. A prudent inspector will dang well have some type of code, mfg instructions, generally accepted practice, etc to defend his position however, if need be though.

Chuck, I also think there was a misinterpretation of words. Your post #5 and James' two subsequent posts seemed to be indicating that there is a requirement for Texas inspectors to cite supporting documents, codes, mfg instructions etc when calling out a deficiency and that FW's affidavit supported that. As I thought more about it I came to the conclusion that the requirement you were speaking of was visual indications that are present (like you have explained) and not code references. I had asked John for his opinion and that's what prompted his post. I think we are all close to being on the same page now

[Joe Farsetta]

The expert withness is a putz, plain and simple. His final statement where he states that failure to reference the building code would mean that the inspector failed to meet minimum standards is a load of crap.

We are home inspectors, and not code inspectors. One can render an opinion based on sound building practices. If I was an expert witness, I would have rendered a basic question, in that the inspector is NOT the AHJ of record, and that the municipal inspection perfomed for the purposes of issuing a CO is the SOLE recoed that counts.

I also fail to see anywhere that required that building codes be referenced.

[Chuck Evans]

Originally Posted by jfarsetta

I also fail to see anywhere that required that building codes be referenced.

I never believed or represented that they were.

My point is to refute this urban myth that if an inspector makes a reference to any building code in their report, they will be subject to being sued for not performing a complete code compliance inspection if they do not call out each and every code compliance issue, in spite of the fact that the inspection agreement clearly spells out that it is not a code compliance certification. No one, to my knowledge, has ever produced an instance where an inspector has been challenged and lost on this premise. Yet, like some zombie, this myth refuses to die.

What I was presenting was not an argument that code references were required, nor was I seeking a debate as to what is/is not required by the Texas Administrative code. What I did intend to do was to present an instance where appropriate references to model building codes, not only didn't harm, but actually HELPED the inspector in his legal argument.

Inspectors should not confuse their role with that of the AHJ, but they also should not be fearful of model building codes.

[Joe Farsetta]

Well.. there is some precedent in this area, though it is State specific.

In NY, an upstate inspector was sued, and lost in court, due to his advertising that he was IBC certified and how he intimated in his advertising that he also based his inspections on the applicability of the building codes.

Turns out that the dwelling had a number of building code violations that he failed to report on, even though his agreement and SOP stated that he was not required to.

The advertising and practice worked against him, and the settlement was around $38k in the Plaintiff's favor.

[Jim Hime]

Same thing happened/happens in Texas.

A home inspector needs code knowledge. How does he/she know what to inspect without it?

The Texas Inspection Standards of Practice are fundamentally code based.

When the litigation hits no contract or disclaimer matters. It's going to cost a bundle.