I need Legal Advice. Past Client wants me to pay $250.00 for a not working Spa Actuator Valve

I did a pool/spa Inspection on 7-13-2019 for a client. I did not operate any valves. I use the NACHI pool/spa Inspection agreement. and in my Pool report I have this wording>
"Industry Standard
This is a report on the condition of a swimming pool or spa as inspected by this company. The scope of the inspection was limited to those aspects of the pool or spa and related equipment which were observable by visual external inspection from the found surface. No pressure tests were performed on the plumbing and none of the pool equipment components were disassembled for the purposes of this inspection. This report includes only those conditions which were observable after a reasonable examination of the pool or spa in normal operating condition on the date of the inspection only. The only way to detect an underground leak in a supply line, buried pipe fitting, or pool surface crack is by observation of the persistent and continuous loss of water from the pool over an extended period of time. Purchasers are encouraged to ask sellers about the existence of any past or present leaks in the pool, spa or associated equipment. Pool filtering devices are not disassembled to determine the condition of any installed filter elements. Operation of time clock motors and thermostatic temperature controls cannot be verified during a visual inspection. Testing of back flush mechanisms is beyond the scope of this inspection.

The inspecting firm makes no representations as to existing conditions of the pool and related equipment other than as set forth herein and observable by inspection in the manner set forth above. Allowances will have been made if the pool is not operational. The inspection company MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, relating to the present condition of the pool and/or equipment nor suitability for continued service.

Any party relying on this report understands that the liability of the inspecting firm, arising from the inspection on which this report is based shall be limited to the amount of the pool inspection fee paid.
THIS IS NOT A CONTRACT OR A BID, BUT A FORM FOR INSPECTION ONLY. "

I charged $125.00 for the Pool inspection. Plus I also did their Home Inspection.and The homebuyer is a Real estate agent so I don’t want To Piss her off or look unreasonable.
Here is her email To Me>
“Hello Marc/Warranty Company,
The Spa Actuator Valve is not functioning, and was not noted on the inspection report. Our pool maintenance company said this should have been noticed immediately on the pool inspection, and is going to cost around $250 to fix. I would assume this is covered within our warranty.
Do you have a company that makes repairs, or should I schedule it through mine? How do I receive reimbursement? - Home owner”

So whats yall’s Advice for me? Do I ask her for the Quote for the repair and I pay it? Does my Agreement and report wording cover me to ONLY pay the Pool Inspection Fee of $125.00?
Or do I tell her I don’t Operate valves?
this is my NACH POOL INSPECTION AGREEMENT and # 4 says My liability is only to the pool inspection fee.

Pool Inspection Agreement
We will inspect your swimming pool. You will pay us an additional $125.00 for this. We will inspect your pool in accordance with the InterNACHI Pool and Spa Inspection Checklist. You agree that the terms of our residential inspection agreement also apply to our inspection of your pool.
This is an Agreement between you, the undersigned Client, and us, the Inspector, pertaining to our inspection of your swimming pool at: (address)
__************* . The terms below govern this Agreement.

  1. You will pay us $125.00_ for our inspection.

  2. We will inspect the pool in accordance with the InterNACHI Pool and Spa Inspection Checklist. You understand that InterNACHI is not a party to this Agreement, has no control over us, and does not supervise us.

  3. We will provide you with a written report summarizing our inspection. Our inspection and report are for your use only. You give us permission to discuss observations with real estate agents, owners, repair persons, or other interested parties. You will be the sole owner of the report and all rights to it. We are not responsible for use or misinterpretation by third parties, and third parties who rely on it in any way do so at their own risk and release us (including employees and business entities) from any liability whatsoever. If you or any person acting on your behalf provide the report to a third party who then sues you and/or us, you release us for any liability agree to pay our costs and legal fees in defending any action naming us. Our report is in no way a guarantee or warranty, express or implied, regarding the pool. We disclaim all warranties, express or implied, to the fullest extent the law allows.

  4. You agree that in all cases our liability shall be limited to liquidated damages in an amount not greater than the fee you paid us. You waive any claim for consequential, exemplary, special or incidental damages. You acknowledge that the liquidated damages are not a penalty, but that we intend them to (i) reflect the fact that actual damages may be difficult and impractical to ascertain; (ii) allocate risk between us; and (iii) enable us to perform the inspection for the agreed upon fee.

  5. If you believe you have a claim against us, you agree to provide us with the following: (1) written notification of the basis for your claim within seven days of discovery; and (2) immediate access to the pool. Failure to comply with these conditions releases us from liability.

  6. You agree that any litigation arising out of this Agreement shall be filed only in the Court having jurisdiction in the County where we have our principal place of business. If you fail to prove any claim against us, you agree to pay all our legal costs, expenses and fees incurred in defending that claim. You agree that any legal action against InterNACHI itself, allegedly arising out of this Agreement or our membership in InterNACHI, must be brought only in the District Court of Boulder County, Colorado. Before bringing any such action, you must provide InterNACHI with 30 days written notice of the nature of the claim. In any action against us or InterNACHI, you waive trial by jury.

  7. If a court declares any provision of this Agreement invalid, the remaining provisions remain in effect. This Agreement represents our entire agreement; there are no terms or promises other than those set forth herein. No statement or promise by us shall be binding unless reduced to writing and signed by one of our authorized officers. Any modification of this Agreement must be in writing and signed by you and by one of our authorized officers. This Agreement shall be binding upon and enforceable by the parties and those that acquire their interests in this Agreement. You will have no cause of action against us after one year from the date of the inspection.

  8. You will pay the inspection fee when we complete the inspection. You agree to pay all costs and attorneys fees incurred in collecting the fee owed to us. If the Client is a corporation, LLC, or similar entity, you personally guarantee payment of the fee.

  9. If a court finds any term of this Agreement ambiguous or that it otherwise requires judicial interpretation, the court shall not construe that term against us by reason of the rule that any ambiguity in a document is construed against the party drafting it. You had the opportunity to consult qualified counsel before signing this Agreement.

  10. If there is more than one Client, you are signing on behalf of all of them, and you represent that you are authorized to do so.
    I HAVE CAREFULLY READ THIS AGREEMENT. I AGREE TO IT AND ACKNOWLEDGE RECEIVING A COPY OF IT.


CLIENT(Date) CLIENT (Date)""""


Marc Lischner

Pay it! Make life easy on yourself.

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Lesson learned. Pay it. Sometimes it doesn’t matter if you’re right.

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It will probably cost you more in the long run not to pay it. Pay it and get a release. I once did an Ozone Shock treatment and the client afterwards said that it damaged the tires on her husband’s bike. The tires were flat and would not hold air. Could have been me or could have not. I paid for the tires and in the end actually got two more jobs out of it. Sometimes we have to eat some crow to get to the steak.

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Agree…

This is a tough one. Doesn’t an actuator cost about $135 and take maybe 15 minutes to remove the old and install the new? I don’t know—I’m just going by the video on Inyo Pools site. If so, refunding your $125 pool fee is generous enough since she’s getting a new actuator. I’d be offended at the way she’s using a cheap shot from some pool company to intimidate you. Also, I thought it was SOP for HI’s to not operate pool valves for the same good reason indoor plumbing valves are never operated. Well, whatever you decide, at least you can add that you don’t operate pool valves.

So, how’d you test the spa functionality on the day of the inspection? Did you switch the automatic control unit to test it?
(FWIW, I test them all the time, that’s how you find the ones that don’t work, or leak, etc…)

$125.00?

Pay it and get a release and be done with that inspection. :thinking:

What warranty is she referring to? One that you provide?

How do I obtain a RELEASE form? Does NACHI have one?

Yes, but with the new forum, I don’t know where it is.

Ask at fastreply@InterNachi.org

Marc,
Take some time and familiarize yourself with the many forms available through NACHI. Print some release forms off and keep em’ with you.
Not to jump on the bandwagon but… Write the check and don’t hand it over until you get a signed release.

2 Likes

Good advice, Scott. :ok_hand:

thanks guys! i found the form.

Good luck, Marc!

He is another one of the 90 Day Widget Warranty CPE’s that issues all the free and apparently worthless (since he is choosing to pay the client back) warranties.

BTW Dominic good catch!

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I don’t offer a warranty on pool inspections
Marc Lischner
843-300-2733
www.Peopleschoiceinspections.com

What!! Doesn’t your 90 Day Widget Warranty series provide coverage for pools??

I hear you guys, and I realize I can’t offer better advice than the experienced. I am also not recommend taking my advice but I would turn down the reimbursement. They take you for a free ride so will everybody else they may refer you to. Unless I feel the guilt or else made an error I don’t just hand over my income I need and earned. I replaced a tub for someone and scratched it with a tool, I never had an issue with these clients of several jobs. Well after I gave them a free tub now they look for a way to get everything for free. I had replaced a vanity faucet and they wanted it for nothing because the condensation on the cold shut off, I replaced the basket strainers in the kitchen sink and they say the drain stoppers don’t fit tight, they tried to get me on a ceiling fan I installed saying I put the blades on backwards for the correct color, they did not realize I could fix that in five minutes but they tried.

Whether you’re at fault or not they can and will sue you. And if you carry E&O insurance, you will be paying through your deductible because it is cheaper for your insurance company to settle than to fight it in court. The suit amount comes from your deductible first then from the insurance company. Then, on top of that, see your premiums rise if you can get the insurance. So, it is better to pay a little now than to fight and pay more later.

That is for those that carry the insurance.

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