http://www.naplia.com/homeinspectors/avoid_being_sued.shtml
Setting the Client’s expectation, consistency in verbiage and process, reporting what you couldn’t see or access, and following and quoting the Standards of Practice are so very important, it’s not funny. A good inspection agreement is also key, but make sure it is not opressive or unconscionable, and limit the fine print and legaleze.
http://www.askthebuilder.com/583_Home_Inspections_Gone_Wrong.shtml
While it is true that most, if not all, inspectors attempt to limit their liability with such a clause, the author takes the view of someone with 20-20 hindsight. If this s all that was needed for an inspector to walk away, then there would be no call for Errors and Omissions insurance. As to follow-on conditions after a settlement the author has failed to recognize and accept is that in all settlements, these clauses and conditions are almost universal. N further damages after the settlement. This is why it is called a settlement, as the matters are settled.
As to the nonsense regarding E&O policies, he is plainly unaware that one of the initial moves of many carriers is to attempt a settlement, often at the expense of the inspector’s deductible. It is far cheaper to settle than to litigate. Finally, not all inspectors carry E&O, which is somewhat understandable due to its high price. there are many competent inspectors who refuse to carry such a policy. It does not mean that they are un-professional.
As to attorneys, these lawsuits are like low-hanging fruit. Inspectors who carry E&O are typically mandated to tender the complaint immediately to their carrier. At that point, the matter is out of the inspector’s hands. Invariably, the attorney will look for something from the carrier to make things go away. Easy money. At the very least, the client will get their inspection fee back.
The author claims that experts can determine the age of the defect. This is but a small piece of the puzzle. The real question goes to whether the inspector could have or would have seen the damage or defect, while following the standard of practice. Many times, the areas in question were either covered, hidden, patched, concealed, or inaccessible.
There is much more than meets the eye here. My advice to the damaged homeowner is to try and remember the conditions which existed in the dwelling on the day of the inspection. Listen to no monday morning quarterbacks.
“I exceed the Standard of Practice”. Many inspectors make this statement all the time. Many put it in their brochures and on their website. But, what exactly do they mean? What measure can anyone apply, with any degree of certainty, to gauge what can be expected of an inspector who “exceeds the standard of practice”?
I suppose it can mean that whatever the SOP dictates is a minimum inspection standard is enhanced. Okay, I’ll buy that. But, now comes the next logical question: is everything in the SOP exceeded, or only certain things and how far will the inspector go beyond the minimum? Am I guaranteed that what the inspector did on his last two inspections will also be done on mine? How can one guarantee that the inspector exceeds the SOP in all cases, uniformly, and on every property?
The problem is that you can’t. A Standard of Practice is called a Standard of Practice for a reason; it creates a standard. Once that standard is “exceeded”, the dynamics and expectations between Client and Inspector are automatically changed. Beyond that, the inspector needs to be careful that he or she has not raised the expectations of the client beyond what can be reasonably delivered. Where the specter of professional liability becomes an issue, these expectations, in conjunction with the inspector’s process, can come back to haunt you.
Let’s say you “exceed” the SOP during the inspection of a forced warm-air heating system. Instead of simply removing the panel covers, you decide to unscrew the flame shield to get a better view of the burners and heat exchanger. You tell the client you are doing this for a specific reason. You use your mirror, flashlight, and boroscope. You find nothing. The client moves into the home and on the first cold night, their carbon monoxide detectors starting to wail. The fire company and gas company come to the home, and discover that the home is filled with carbon monoxide, apparently emanating from the heating system. A specialist is called and discovers a crack in the exchanger. The system requires replacement, and the client wants to know what you are going to do about it. You feel that you are in the clear. You get sued. Now, your inspection process gets called into question, because you claim to have exceeded the standard of practice. In fact, you were specifically chosen over all other inspectors in your area, because you boast that you exceed the SOP. Your processes have no parameters. Your processes have not been revealed to the client. All they know is that you unscrewed something, claiming to be able to get a better view. You used a “whatchamacallit” to enable you to see things that other inspectors can’t see. Yet, you still didn’t find the problem. It’s going to be a tough call to go back to the very standard you ignored as a defense, by saying “I didn’t have to do what I did, because the standard says so”. The fact of the matter is that you chose to throw the SOP out the window as a means of marketing; remember, you tell everyone how you “exceed” the standards.
The problem becomes one of undefined boundaries. How far are you expected to go? You have failed to accurately set the client’s expectations. They now expect you to exceed. So, please exceed…
Think of the former co-worker that told tales of weekend conquests; whether it be hiking, or a date, or some massive project around the house. Then think about what you thought when it was discovered that the conquest wasn’t exactly as real as depicted. Or the sale at the local department store, where the words “while supplies last” is in the fine print. You go to purchase the item only to find out that there were two in stock that sold out as soon as the store opened. The person or organization claiming something that, while technically correct, turns out to be a load of bunk quickly gets the reputation of being a liar.
For home inspectors, this can be the difference between losing and prevailing in a lawsuit. When determining professional liability, one needs to examine the benchmark, or parameters, by which the inspection was performed; that benchmark is the SOP. When you veer too far outside of those parameters, you are in undiscovered territory. Instead of being black and white, shades of gray become areas for close examination. Where process becomes the issue, it becomes vital that those processes are documented and available. Process needs to be defensible, consistent, and expectations need to be correctly set.
By Joe Farsetta
Inspection Arbitration Services
http://www.inspectionarbitrationservice.com
DID YOU KNOW… That if a home is renovated, and rendered “tight”, including new Thermopane windows, the installation of a high efficiency furnace with no fresh-air intake from the exterior can create a suction within the dwelling, which can cause windows to lose their seal?
September 18th, 2009 in
Tips |
No Comments
DID YOU KNOW… That even if a roof has a new 2nd layer, it likely has no manufacturer’s warranty?
September 18th, 2009 in
Tips |
No Comments
DID YOU KNOW… That often times, the ceilings of the closets are the last things to ever be painted? Often, if there was a roof leak, the stains manifest themselves on closet ceilings. Examinations of these surfaces can often provide a glimpse of what may have happened in the past
September 18th, 2009 in
Tips |
No Comments
DID YOU KNOW… That even if there is adequate amperage at the main electrical panel, a lack or branch circuit breakers is often the bottleneck, and that increasing the service amperage may not solve a flickering light issue on a circuit?
September 18th, 2009 in
Tips |
No Comments
