[quote=“dduffy, post:33, topic:34139”]
It would be an embarrassment to me personally, which is why I would NEVER ask someone to sign something so ridiculous.
**If I miss something I DESERVE to be sued…!!!/**quote]
That’s a little over the top Dale, everybody makes a mistake sometime, they should not automatically be sued for it! :roll:
Exactly, and wouldn’t it be a shame, if in your 31st year, you lost more than you had made during those 31 years! There are many out there, just waiting for you to make a mistake.
I have a hard time believing that somebody lost everything they made in the 31 years (31 years representing a lot of money) from one lawsuit just because they didn’t have P4, or something similar, written in that contract.
If that wording has the potential to prevent a lawsuit (which in most cases would go to arbitration), it’s surprising that similar thinking would not be applied to other contracts.
As a buyer, I would have a hard time hiring any company that would tell me:
“If I miss something or screw up, I’ll give you back the cost of the fee.”
Or wait, let’s make the contract better for the client.
“If I miss something or screw up, I’ll give you back 2X the cost of the fee.”
$300 dollars to correct something that was clearly missed that will cost over $1000 is silly. Why not just put in the contract that you will not be responsible for any mistakes? It’s basically the same.
In my opinion, the only time the cost of the inspection should be returned is if they didn’t have any problems that should have been discovered at the time of an inspection and the new owners realized that you didn’t inspect anything.
Would any home inspector hire another home inspector to inspect a house they were buying with that wording in it. You know my answer.
OK, I don’t have all the facts on this one, but…
I was told by an atty that this clause has to do with contract law and not negligence.(?)
The first reason this defence gets shot down is because you will always see the complaint worded as you being negligent.
Something like, if you made a mistake in reporting/inspecting the limitation may hold.
Example: You forgot to inspect/report a required inspection element. The client was not really hurt from the lack of this information, other than you did not fill your contractual obligations.
If they show you are negligent (you wilfully failed to do your job) resulting in this mistake, there is no LOL.
This obviously is a fine line thing (and I don’t conceptualize it well in our case).
Anyway, just like the lawyers drag everyone connected into the case, it’s very easy to just claim your “negligent” and hash it out in court later. They don’t show how your negligent in the complaint, that just state you were negligent.
It will trip you out sometimes! As you go through the complaint, it’s like they must be talking about someone else because nothing applies to you or the known facts.
You must have missed the, “if” in my sentence, it was just a speculative statement.
In reading the views of inspectors (some of whom I hold in high regard) who oppose the limitation of liability to the inspection fee, I am compelled to respond.
Limitations of liability are common instruments used by a variety of folks under various circumstances and always…always…allows the party who is uncomfortable with that limitation to choose another person to do business with.
With average inspection fees in today’s market in many areas running in the $250 to $300 range, why should we be carrying the same liability that a real estate agent carries for their fees of 7% of a $300,000 sale?
Along with these statements of limited liability is the more important statement that help these limitations make sense…that is, the inspection report is not a warranty. Those expecting it to be would be justified in their objection to such limitations.
What I sell is simply a report that describes the present condition of the various systems of the home…all of which are subject to change the moment I pull out of the driveway. My report is a snapshot of the conditions that were present while I was present…and does not reflect in any shape or form what will or will not happen in the future.
With that understanding, I have not had anyone reject a limitation of liability clause since including it in my contract for five years. Nor have I had anyone expect me to cover the cost of a failed component. Limited liability is another very effective means of establishing a client’s expectations to what a home inspection actually is and if they are looking for more than that…as this attorney obviously was…they are free to shop around for someone willing to offer more.
Anyone can be sued at any time for any thing…no matter WHAT it says in your contract. As stated earlier, it will be decided by a judge what is upheld or not. But I think that the LOL clause can be effective in “weeding out” someone wanting a warranty for anything that goes wrong with their house for the next 10 years. They are looking for someone up front to sue for anything, and if the clause causes them to look for another inspector, more power to them. But don’t think that because the clause is in there that you are necessarily covered to limited liability. You are not.
I didn’t miss the “if”. I was saying that even if that person worked 5 years, 10 years, 20 years or so forth, I don’t think the wording we have been talking about is going to stop somebody from winning the case (Potentially equaling or exceeding the amount that home inspector earned over those years) but limiting the amount the home inspection company has to pay out to only the cost (or twice the cost) of the home inspection.
O-well, the way I look at it is that the wording doesn’t hurt anything unless you lose a job(s) from it. If people are willing to sign that contract (which I found most people don’t read including lawyers that I do home inspections for), then that is their choice.:neutral:
I don’t expect the clause to protect me from anything in a court of law, but, I do believe it can be used as an deterent. As several judge’s were the first to admit, that if you come to court expecting Justice, you will leave very disappointed!
Agreed. It actually may minimize “risk” rather than liability.
There are many examples of limitaion of libality in every day life situations, and I find in that in most caes they stand up. Ever rent a truck? a Car? tools? Equipment?
In all those cases, liability is limited to the cost of the rental, no matter that rental agency did or did not know the equipment was faulty. Hate to tell ya the amount of times I have had equipment delivered that did not function properly, costing a great deal of money in time down for them to get me working equipment. This is true in many other areas of commerce.
As to the orginal case in point, if the client (an attorney) wants that portion of the agreement crossed out, I would run like hell from the job, as you know then, that he WILL be looking for a reason to sue.
Many a years ago, I did a bid (as a generasl contractor) for a potential client (who turned out to be an attorney). He was happy with the bid, BUT HE
There are many examples of limitaion of liability in every day life situations, and I find in that in most caes they stand up. Ever rent a truck? a Car? tools? Equipment?
In all those cases, liability is limited to the cost of the rental, no matter that rental agency did or did not know the equipment was faulty. Hate to tell ya the amount of times I have had equipment delivered that did not function properly, costing a great deal of money in time down waiting for them to get me working equipment. This is true in many other areas of commerce.
As to the orginal case in point, if the client (an attorney) wants that portion of the agreement crossed out, I would run like hell from the job, as you know then, that he WILL be looking for a reason to sue.
Many a years ago, I did a bid (as a generasl contractor) for a potential client (who turned out to be an attorney). He was happy with the bid, BUT he wanted to know the amount of insurance coverage I carried above and beyond the state mandated minimum,AND wanted to look over my policy in full!!! Needless to say, a huge red flag started flying, and I declined to not only not show him my policy but not do the job!!!
In over 30 years of contracting, I have never been sued, and the only receivable I ever wrote off was from (guess who??) an attorney!!!
So, I would leave in the limit of liability in my contract and let the courts decide on a case by case basis the validity of the contract, and of course, have insurance as a back up!!!
For self preservation, I think that the turning doiwn of this client was a smart move. Why take the chance for lousy few hundred dollars, which could cost you thousands???!!!
I guess people can look at this in two ways. A red flag when a potential client wants to remove it or the home inspector having that wording in their contract.
Personally, I think the inspector having it in their contract is a bigger red flag than the potential client actually reading the contract and seeing where that wording could lead (client understanding what they just read without knowing the law) and asking it to be removed.
I can see many people thinking that if they sign that contract, the home inspector/company is basically (basically = the cost of the inspection) off the hook and the buyers will get stuck paying for something that home inspector should have called out but didn’t. :neutral:
To each their own.
Let me think about all the UN-PROFESSIONAL people or businesses that had me sign release of liability forms to do business with them. They did not limit their liability to the fee paid - They said they had NO LIABILITY.
The doctor doing my lasik surgery; the school before taking my grandson on a school outing; the United States Marine Corps before taking retired Marines on a tour of the base; the surgeon straightening my deviated nasal septum; the cardiac surgeon doing my heart bypass; etc.
Or how about the home warranty company that sold me a 1 yr warranty on all the mechanical components in my house for $445 - then when I read the fine print, it says the most they’re liable for is $2,000 p/yr.
Get real girls - We’re not insurance, just a general physical.
My clients can get “NO LIMIT of LIABILITY” and a 1 yr warranty - but they gotta be Big Boys and Big Girls and pay me for my RISK. With me its 1% of the sales price OR $2,950 / whichever is MORE.
I may walk Niagara Falls on a tightrope without a net - IF THE PRICE IS RIGHT - but $300 does not get me to take the risk.
Your not comparing apples with apples.
In General, the courts look at what is considered reasonable. Paying $300.00 on a repair that the courts considers you responsible at $12,000 is not considered reasonable. I think that’s the reason why that part of the contract has not held up in the courts (at least around here).
When it comes to reducing the chance of getting sued, most of the time around here, the buyer includes the seller. The home inspector for not reporting it on the home inspection report and the seller for not disclosing it on the required disclosure form. So I think they go to a lawyer to sue the seller and that’s when the lawyer informs the buyer to sue the home inspector/company and not to worry about that part of the contract.
Just my conclusion from information my wife saw from when she worked for a lawyer.:neutral:
Actually I am comparing apples to apples.
WE ARE NOT a buyers “Cradle to Grave Insurance Policy”. Never have been - Never will be.
Just like buying a used car from a dealer - My clients have a choice.
Do you want the house AS IS, with a LIMIT of LIABILITY to the fee paid, OR Do you want a 1 Yr Warranty without LIMIT of LIABILITY.
On yesterdays inspection they could have Choose #A and the fee is $389
OR they could
Choose #B and the fee is $3,850
They chose #A. If we ever went to court, I’m comfy knowing they chose to go bare-***** naked into the future.
“Your Honor, as the Inspection Agreement clearly shows Betty & Herman were offered an Inspection without a LIMIT of LIABILITY and a 1 Yr Warranty but DID NOT want to spend the money, BUT now that … has gone bad they’d like to have someone else pay for THEIR mistake”.
Think about it girls … DO NOT let yourself become a Rape Victim.
If they can afford to pay a RE Agent 3% - 6% for acting as a Taxi Driver, Tour Guide and Showing them where to sign their name on papers - they can pony up 1% for us OR take a LIMIT of LIABILITY
Any chance to post or email that clause?
Why was this lawyer asking to have the clause removed if it’s common knowledge that it doesn’t hold up in court? The answer is that it may hold up in court so why not have it in there?
Or possibly (probably) not a very good lawyer. :mrgreen:
My guess is any lawyer worth his salt wouldn’t care what’s written in our agreements, he’d sue anyway and take his chances looking for a settlement.
Many lawyers specialize in certain areas of law and may not be familiar with areas of law they normally don’t practice. I would never ask a lawyer that deals with estate planning to represent me in a DUI.
I never wrote that it was common knowledge. I wrote that I don’t think that this type of limitation should be used and that there is no case (that I am aware of) in the state of Indiana that has ever allowed that part of the contract to be enforced. Every state is different and like I wrote, a lawyer from an ASHI meeting in Illinois did say it has been enforced in that state.
If I were going to use that limitation in my contract, I would just put down Zero dollars ($0). Who came up with the cost of the home inspection or 2X the cost of the home inspection? What, if you give them the cost of the home inspection back it’s like the inspection never took place?