LEGAL: Ask NACHI's Attorney Joe Ferry, Dedicated Thread.

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81

Originally Posted By: bkelly2
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jferry wrote:
So back to adhesion does the 5 days help in the case of adhesion? And to answer you question 2 years and no takers, I also have to agree to refund the fee. I have heard others speak of the customer not having eouugh time to digest the contract, that is the reason for the 5 days.

Roy -

Yes. It helps.


Thank You Joe

--
"I used to be disgusted, Now I try to Be amused"-Elvis Costello
82

Originally Posted By: rwand1
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Douglas, pardon me for answering for Joe, but…


No you cannot use RHI if you are not a member of OAHI. But having said that, membership in OAHI is not mandatory to practice home inspections.

OAHI has in the past prosecuted one ex member for continuing to promote himself as a member by using RHI after his membership expired. He was convicted and fined $1500. The maximum fine is $5K. A precedent in terms of the amount of fine has been set. And worthy of note is the fact that any fine imposed by the court for breach of the act are remitted to the Crown (government). OAHI never rec'd nor will they ever receive any money collected by the courts for breach of the act. Specifically Article 12 (1, 2, 3, 4)

Check the link out below, this is PR158 enacted by a Private Members Bill.

http://www.nachi.org/bbsystem/usrimages/P/Pr1585.pdf

Needless to say it cost a great deal of time and money for OAHI to have this matter dealt with. And again, RHI has never been effectively utilized by way of advertising or public relations. The act itself is relatively very weak in its application and I would suggest that parts of the act are breached quite often by the management and through the by-laws in which the Act spells out the guidelines for the by-laws

Perhaps Joe Ferry will have further comments.

Cheers,

--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

83

Originally Posted By: dcossar
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Ray:


Thanks for the info I don't want to join the OAHI and don't care about RHI.

I was just curious, is all.

cheers
Doug

84

Originally Posted By: rwand1
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Having given my opinion above, I it would only be fair to also state that other associations all have their problems.


Fwiw, I really don't care which association anyone belongs to. Membership in an association does not equate to being a good inspector anymore than having insurance makes for a better inspector.

Anyway at least from my point of view and business wise I can't remember the last time anyone asked me about association membership. But then again I have been inspecting since 1991 and I would like to think my reputation is more important than affiliation from the feedback I get.

Of a total of 112 Client Feedback Forms dating from 1996 to present, only 13 chose professional status as to one of the reasons for retaining my services. I thought that was interesting.

Good Inspecting!

--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

85

Originally Posted By: rmoewe
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Hi Joe,


I just received a summons today. This my first one, so I am a little uneasy. The problem was mold that was found in a closet. During the inspection the closet was not visible. It is located in a basement with a bump out. In the bump ouy the seller had built an entertainment center. There was big screen TV installed in the middle of the ET. center. I had no idea that there was even a closet there. It was totally concealed.


So when the seller moved, he took his TV. This made the closet accessible and my clients who then found the mold.


I am the last person named on the summons. The sellers name is first. Does it matter where your name appears on a summons? Everyone involved is being sued, listing agent, seller agent, the sellers, and me. I explained to my clients attorney in May that it was not accessible and not inspected. Therefore, how can I be responsible for something I could not access.


He then told me that everyone was meeting at the house ( at the time I was talking to him) and I SHOULD GET THERE RIGHT AWAY. Well I had an inspection and could not get there. I did try to arrange another time, to no avail. I stopped by the house 3 times and left my card with a note to call me, so we could work it out. I never received any calls.


Now the summons says that I have violated my contract, And NACHI"S SOP and Ethics by not showing up. How can they do that when I had no idea there was a meeting planned?


The other thing about the summons is that the plaintiffs name that appears on the summons is different than my client. I think that my clients father bought the home, since that is who’s name appears on the summons. I do not have his name on the contract or the report. At the bottom of front page of my report reads, " This inspection report is the exclusive property of Comprehensive Home Inspection and the client whose name appears herewith, and it’s use by others is prohibited."


So how can someone who did not pay me and whos name does not appear anywhere, sue me?


Any help would be great. I am about to write the check for the retainer of my attorney. Do I have the right to counter sue for lost time, attorney fees, etc.? My report and contract both say a visual inspection od readily accessible areas, and that I do not inspect for mold. I think that this should be enough to protect myself, but I guess not. I am being sued.


Thanks, Rick

86

Originally Posted By: jferry
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Rick -


It's always a little unnerving when you receive a legal summons and, especially so, if you are unfamiliar with the process.

It does not matter where your name appears on the summons. Someone has to be last and someone has to be first.

Anyone with $150.00 and a piece of paper can sue you? It's a shame that you do not have insurance to respond to this claim. Under the factual scenario that you describe, it sounds like you have several dispositive defenses.

I do not know what the law is in Tennessee regarding recovering damages from someone who files a frivolous suit. In Pennsylvania, there is specific legislation that permits such recovery if the suit was filed without probable cause or with gross negligence and your defense was victorious.

You will not be able to make that case as a counterclaim. You will have to win the case first, then file your claim.

The attorney who summoned you to the house without notice was being completely unreasonable and your failure to respond to this unnoticed summons will have no effect on the outcome of this case.

Keep us informed of the progress of this case.

87

Originally Posted By: rcooke
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jferry wrote:
Rick -
Anyone with $150.00 and a piece of paper can sue you? It's a shame that you do not have insurance to respond to this claim. Under the factual scenario that you describe, it sounds like you have several dispositive defenses.
Keep us informed of the progress of this case.

Joe say's it is to bad you do not have insurance .
Sorry Joe I have to disagree in this case
This is a typical case where the Inspector is correct and the insurance company will not fight they find it so much easier to settle the frivolous claims and next year raise the rates they charge Rick as they have paid out a claim.
I now go with out insurance( 7 years claims free) because the companies do not stand behind the inspector .
I know of at least 3 claims that should never have been settled but the Insurance companies will not fight .
Now the rates are so high and have a large amount of deductible they can not lose.

--
Roy Cooke Sr.

http://Royshomeinspection.com
88

Originally Posted By: bking
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Rick,


I see nothing in the SOP's or COE that requires you to make a trip back to the property. Their attorney is just taking their money. They have no case against you, not sure about the seller though. Hope you had something in your agreement about recovering expenses when you prevail......except your agreement does not involve this plaintiff.

I would investigate how to go after your client for giving out the report. This can be done now without waiting for the outcome of the other issue.
I have this in my agreement: "Client agrees to indemnify, reimburse, defend and hold Inspector harmless from any third party claim, action, demand or costs associated with the Inspection or Report that is brought by that third party".

Your report should be automatically covered under copyright laws so this would be another avenue to explore too.

Good luck and keep us posted

--
www.BAKingHomeInspections.com

89

Originally Posted By: jferry
This post was automatically imported from our archived forum.


rcooke wrote:
jferry wrote:
Rick -
Anyone with $150.00 and a piece of paper can sue you? It's a shame that you do not have insurance to respond to this claim. Under the factual scenario that you describe, it sounds like you have several dispositive defenses.
Keep us informed of the progress of this case.

Joe say's it is to bad you do not have insurance .
Sorry Joe I have to disagree in this case
This is a typical case where the Inspector is correct and the insurance company will not fight they find it so much easier to settle the frivolous claims and next year raise the rates they charge Rick as they have paid out a claim.
I now go with out insurance( 7 years claims free) because the companies do not stand behind the inspector .
I know of at least 3 claims that should never have been settled but the Insurance companies will not fight .
Now the rates are so high and have a large amount of deductible they can not lose.


Roy -

I keep hearing that refrain but I have to tell you that, as one who has been on both sides of lawsuits - representing both plaintiffs and defendants, that has not been my experience.

Example: I represented a life-long friend who had been t-boned at an intersection by a driver who had run a stop sign. I had a witness who was in the car behind my friend and he gave a statement that buried the other driver. Moreover, this witness happened to be the Risk Manager for the City of Philadelphia, not someone inclined to support a frivolous claim.

I demanded the policy limits of $15,000 and the insurance company refused to pay. At trial the verdict was $15,000. That is a case where a clearly legitimate claim was defended to the death.

If insurers are defending legitimate claims vociferously, it sends a message to the plaintiff's bar: Don't even think about bringing a frivolous suit. As a result, in Philadelphia you cannot get an attorney to bring a suit unless the potential fee will justify a lengthy court fight. It is simply not worth it to the attorney.

Further, on your point about insurers simply 'caving' and raising your rates the following year, there are severe tort disincentives to their doing so. Bad faith lawsuits against insurers for such conduct have resulted in massive damage awards.

See, e. g., http://64.233.167.104/search?q=cache:tYyynGLFDEcJ:www.mcgeorge.edu/government_law_and_policy/publications/ccglp_pubs_bad_faith_cases_pdf.pdf+%22bad+faith+verdicts%22&hl=en&client=firefox-a

They are not going to risk that to save the value of your deductible.
90

Originally Posted By: rcooke
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This is great it sure is different in Canada.


I guess this is the reason a claims free inspector like me is charged about $5,000:00 with a $5,000:00 deductible .


I do know that they do settle and seldom fight…


The insurance also has many disclaimers on what they do not cover.


Hearing from other inspectors I think we are running about 50% that do not have insurance in Canada.


I was talking to one inspector who also is claims free but his area the insurance company does not give insurance .


Strange country we live in .

–
Roy Cooke Sr.


http://Royshomeinspection.com

91

Originally Posted By: rmoewe
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Okay, What about the names on the summons?


The other thing about the summons is that the plaintiffs name that appears on the summons is different than my client. I think that my clients father bought the home, since that is who's name appears on the summons. I do not have his name on the contract or the report. At the bottom of front page of my report reads, " This inspection report is the exclusive property of Comprehensive Home Inspection and the client whose name appears herewith, and it's use by others is prohibited."

Shouldn't I have received a certified letter from them for arbitration. Or was I supposed to send them one?
Thanks, Rick

92

Originally Posted By: bking
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Rick,


It sounds like you are being brought in to be used as a witness without paying you for your time. Any attorney would know that the 3rd party has no case against you. I would report the attorney to the bar association. Send a certified letter to your client demanding that they provide an answer as to why your report was given away and your agreement violated. Did you have the 3rd party language in your agreement? If so, warn the client that they will most likely be paying for your defense in the end.

--
www.BAKingHomeInspections.com

93

Originally Posted By: jferry
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rmoewe wrote:
Okay, What about the names on the summons?

The other thing about the summons is that the plaintiffs name that appears on the summons is different than my client. I think that my clients father bought the home, since that is who's name appears on the summons. I do not have his name on the contract or the report. At the bottom of front page of my report reads, " This inspection report is the exclusive property of Comprehensive Home Inspection and the client whose name appears herewith, and it's use by others is prohibited."

Shouldn't I have received a certified letter from them for arbitration. Or was I supposed to send them one?
Thanks, Rick


Rick -

I understood you to have said that you had retained an attorney. Not knowing anything about this case other than what you have stated, it is difficult to advise you.

I had previously told you that it looked as though you had several dispositive defenses and that includes the fact that you have no relationship whatsoever to this plaintiff. Your attorney will undoubtedly assert all of those defenses.

If you contract requires arbitration, your attorney will likely file a motion to dismiss for improper venue.

Please keep in mind, that he is an attorney and you are not. I don't want you to be telling him that 'Well, Joe Ferry said you should be doing thus and so.' Quite often, attorneys do not take every step available for a variety of strategic reasons not always apparent to laymen.

My advice is to relax. Let your attorney do his job to get you out of this. Explore retaliatory options [they may not be cost-effective] and regard this as an object lesson on why people carry insurance.
94

Originally Posted By: jferry
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bking wrote:
Rick,

It sounds like you are being brought in to be used as a witness without paying you for your time. Any attorney would know that the 3rd party has no case against you. I would report the attorney to the bar association. Send a certified letter to your client demanding that they provide an answer as to why your report was given away and your agreement violated. Did you have the 3rd party language in your agreement? If so, warn the client that they will most likely be paying for your defense in the end.


I doubt very much that Rick is being brought in as a witness. Most attorneys want witnesses to be cooperative and suing them is the method least likely to elicit their cooperation.

Rick has not shared the plaintiff's theory of liability against him. If the attorney alleged that he was negligent in not looking in the closet and that he 'knew or should have known' that the report would be relied upon by others, that is probably enough to keep him in the case. Is it enough to win without more? Unlikely.

Unfortunately, this is the tangled web you enter once you are involved in litigation.
95

Originally Posted By: rcooke
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Joe I have a satisfaction Guarantee. Money Back if you are not satisfied .


I have used it 3 times in over 1,000 inspections .


What I would like to know will my getting the client to sign a cheque and I give them back their money ,


with this written on the back help to remove me from future concerns.




Cashing this cheque Removes Roy’s Home Inspection from all past ,Present and future Encumbrances.


If not,
can you give me your thoughts what I should put on the back of the cheque.

--
Roy Cooke Sr.

http://Royshomeinspection.com

96

Originally Posted By: jferry
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Roy -


I would not rely on a disclaimer on a check. What you want is a release.

http://www.nachi.org/release

Joe

97

Originally Posted By: rwand1
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Sounds like a “latent” defect to me.


Good luck my experience with E&O has been the same as Roy's at least in Canada.

Why should you be responsible for mould when no home owners insurance policy will cover it. It is now disclaimed in all home insurance policies in Canada!

To my knowledge no E&O policy will cover mould issues either. They disclaim coverage for it.

The action of the lawyer is inexcuseable for not informing you of a meeting at the property by all those named in the action!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

This sounds like a shotgun approach, name everyone to see who will cough up money.

DON'T admit any liability whatsoever. Keep notes of how you were informed, time, dates, copy of report and pertinent limitations of report, contract et ceteras.

I hate bloodsucking lawyers and people who try and get something using this type of action.

Joe F., sorry about the comment "bloodsucking lawyers" but in this case the plaintiffs lawyer sounds like a real "winner."

--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca

98

Originally Posted By: jferry
This post was automatically imported from our archived forum.


rwand1 wrote:
Sounds like a "latent" defect to me.

Good luck my experience with E&O has been the same as Roy's at least in Canada.

Why should you be responsible for mould when no home owners insurance policy will cover it. It is now disclaimed in all home insurance policies in Canada!

To my knowledge no E&O policy will cover mould issues either. They disclaim coverage for it.

The action of the lawyer is inexcuseable for not informing you of a meeting at the property by all those named in the action!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

This sounds like a shotgun approach, name everyone to see who will cough up money.

DON'T admit any liability whatsoever. Keep notes of how you were informed, time, dates, copy of report and pertinent limitations of report, contract et ceteras.

I hate bloodsucking lawyers and people who try and get something using this type of action.

Joe F., sorry about the comment "bloodsucking lawyers" but in this case the plaintiffs lawyer sounds like a real "winner."


We are working on gettng the NACHI E & O program approved in Canada, so as President Bush used to say 'Help is on the way.'

We now have a mold waiver: http://www.nachi.org/moldwaiver to address that issue.

Our E & O policy does not 'disclaim mold'; it excludes it but the coverage can be purchased for an additional premium.

While I can understand your position, you should keep in mind that the lawyer is a professional, too, with his own E & O concerns. [What?!! You didn't sue the idiot home inspector who failed to find the mold??!! You incompetent moron, I'm suing you, too.] Suing everyone is a way of prempting that very real eventuality.

I remain confident that Rick will be exonerated, tho not without considerable sturm und drang.
99

Originally Posted By: rcooke
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jferry wrote:
Roy -

I would not rely on a disclaimer on a check. What you want is a release.

http://www.nachi.org/release

Joe

Joe I was involved in a law suit that was settled out of court.
The release had (for the sum of $2:00 we) and more words that meant little to me .
I was told this is normal procedure and is required .
I noticed the NACHI release does not have this should it be in there and what is the purpose.
I am so pleased you have taken the time to give help you can be sure there are a lot of happy HI's out there .
Thanks to you and NICK.
NACHI again proves it is Number ONE!

--
Roy Cooke Sr.

http://Royshomeinspection.com
100

Originally Posted By: rwand1
This post was automatically imported from our archived forum.


Quote:
We now have a mold waiver: http://www.nachi.org/moldwaiver to address that issue.


Great I will have to take a look.

Quote:
Our E & O policy does not 'disclaim mold'; it excludes it but the coverage can be purchased for an additional premium.


I think our providers may offer the same coverage. But how can you be liable for a latent defect?

Quote:
While I can understand your position, you should keep in mind that the lawyer is a professional, too, with his own E & O concerns. [What?!! You didn't sue the idiot home inspector who failed to find the mold??!! You incompetent moron, I'm suing you, too.] Suing everyone is a way of prempting that very real eventuality.


Good point. I guess what goes around comes around eh? ![icon_wink.gif](upload://ssT9V5t45yjlgXqiFRXL04eXtqw.gif) Just seems to me "some" lawyers" do what the client wants and not what their experience tells them; what in the end will be a fruitless endeavour; Rick exonorated at a cost to him for something he is not at fault for. No offence but the only winners here will be the lawyers. ![icon_wink.gif](upload://ssT9V5t45yjlgXqiFRXL04eXtqw.gif)

I think Rick has a good defence.

Quote:
I remain confident that Rick will be exonerated, tho not without considerable sturm und drang.



Sturm und drang
Noun

A state of violent disturbance and disorder (as in politics or social conditions generally)

Thanks for your help and advice, much appreciated.

Have a good weekend.


Cheers,

--
Raymond Wand
Alton, ON
The value of experience is not in seeing much,
but in seeing wisely. - Sir William Osler 1905
NACHI Member
Registered Home Inspector (OAHI)
http://www.raymondwand.ca