By Keith Swift, PhD
President Porter valley Software
InterNACHI Report-Writing Consultant
I received a request for advice today from a relatively new inspector in my general
area, who is threatened with a lawsuit. Inasmuch as I write almost exclusively
about avoiding litigation, I am fast becoming known as the prophet of doom, although
prophet is too lofty a term for a mere mortal. For this reason, I’m always very
careful to document what I say with indisputable facts or testimony, but in this
particular case the inspector does not want to be identified, and I respect that.
If you want documented proof don’t read on. But if you’re interested in learning
more about litigation, and the way to avoid it, keep on reading.
No lawsuit is ever simple. In fact, most of them are filled with abstract and
difficult to understand Latinate words instead of simple concrete Anglo-Saxon
ones. In addition, there are generally poorly written and filled with ridiculous
overstatements (hyperbole) that have very little to do with the actual truth.
However, there’s nothing that we can do about that, but if you’re interested in
learning more about that subject read George Orwell’s essay, “Politics and the
English Language.”
This lawsuit is complicated by the fact that the inspector does not have insurance.
Apparently, he had read one of my articles that appeared in The Mall about a year
ago, and claims to have called me for advice on insurance. He confirms, thank
God, that I advised him to get it as soon as possible. In fact, he reports that
I’d been specific in my recommendation but, like many new inspectors, he was eager
to save money and confident that he would never be sued. I felt the same way for
twelve years or so until I was victimized twice in a five-day period by two frivolous
lawsuits; hence the necessity for insurance and my passion for warning inspectors
about the threat posed by litigation.
As to the lawsuit, the inspector is being sued over cracks in hard surfaces,
which the plaintiffs insist the inspector should have known or warned them about,
and which have affected the value of the house, and would have prevented them
from buying it. I don’t know what’s going to happen, but I can guess. If the inspector
is really lucky, the lawsuit will go away when the attorney learns that the inspector
does not have insurance or viable assets. This could happen, because most lawsuits
are about the money that insurance companies are willing to pay to settle a case,
and seldom about justice in the purest sense of the word. But, supposing it doesn’t
go away, what then?
Let’s talk about the obvious defenses: the inspection was done in accordance
with nationally recognized standards, which define the inspector as a generalist
and not a specialist, and that the alleged damage was concealed or not clearly
visible on the day of the inspection, and so on and so forth. These are all noble
defenses, but of little value. Ask yourself, if the inspector wins with this defense,
what has he won? He has wasted precious time and money defending himself, and
has only the reward of an empty victory. So where am I going with this story?
Many of you already know, and particularly if you’ve seen the movie Cool Hand
Luke (a religious movie if ever I’ve seen one). To borrow a famous line from the
movie, “what we have here “is a failure to communicate.”
Unfortunately, the inspector could be said to have programmed his business to
destruct. First of all, he was using paper check-sheets, with check-boxes and
minimal hand-written comments. They have their place, and God knows I used them
for about twelve years, but they’re no match for attorneys, who are likely to
study every word in even the most sophisticated of narrative report. Forget about
the fact that I have a vested interest in a computerized report-writer, which
has never influenced the advice that I given to inspectors. All inspectors have
an obligation to “communicate” with their clients, a Latinate word that means
“to share.” And this inspector had a moral and ethical right to share with his
clients what he knows about cracks in hard surfaces, how they originate, and what
they commonly indicate. And, in doing so, he might avoid litigation, and even
if he is not able to his defense will be immeasurably stronger.
He understood when I shared with him that I carry insurance because I’m human
and can screw up on any given day, even though I know that I’ve made myself a
more attractive target for unscrupulous clients and their attorneys, and he was
even more impressed when I asked him what he would want if he was my client and
I was inspecting his most expensive investment. And he was also impressed when
I showed him the information about cracks that prints automatically with every
one of my reports, and was appreciative when I showed him that I comment on even
the smallest of what may appear to be simple curing cracks.
I have little faith in the judicial system, because it is too easily corrupted,
and leave almost nothing to chance. I’m an old soldier, as you can see by the
titles of many of my articles, such as “There are Terrorists Among Us” and “The
Weapons of War,” and I regard my report-writer as a weapon, and my narratives
as ammunition, and I’ll always fire first and ask questions later. I’ve been shot
at and hit, and there is nothing more pleasurable in life as they say than being
shot at and missed. Take care, and leave nothing to chance.
