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Dominic Maricic
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« on: December 11, 2010, 02:01:20 AM » |
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I came across this on the ASHI board and found it interesting and thought I'd post it here for your reading. It's about an IL case where a new home has problems with it's foundation, moisture and a few other issues. The inspector & builders get sued but the inspector gets off based on limiting his damages to his inspection fee, and it being past his contractually stated 2 year limitation. http://www.state.il.us/court/opinions/AppellateCourt/2010/5thDistrict/December/5100066.pdfThoughts? In the past I've always heard that the inspection fee clause has not normally stood up (yes I realize the $175 is an inexpensive inspection!). |
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Bob Elliott
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« Reply #1 on: December 11, 2010, 03:00:19 AM » |
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Hard to say what the implication is off hand.
Will it translate to other cases?
Seems like so many cases depend on which Lawyer the Judge last played golf with.
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Dominic Maricic
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« Reply #2 on: December 11, 2010, 03:06:21 AM » |
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They all play together. I used to play basketball during lunch at a local gym. The judges, DA's & Public Defenders all played together.
Without a doubt it will get used in other cases as it sets a precedence. Will it affect the outcome of other cases? Who knows!
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Bob Elliott
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« Reply #3 on: December 11, 2010, 03:09:34 AM » |
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Thanks for posting this however as I saved a copy.
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Gary Price
Jr. Member
Karma: 0
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Posts: 52
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« Reply #4 on: December 12, 2010, 08:00:50 PM » |
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According to some local attorneys in Ohio ( cleveland ) the limitation of damages to the inspection fee holds little weight and is not even pursued by defense attorneys as historically it has proved to be a fruitless endeavor. I am not sure of the statute of limitations.
A side note: It is scary out there as it seems everyone wants a perfect home without any problems. Stuff does happen, and lawsuits should only be pursued in only the extreme cases of negligence. Just my opinion.
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Michael Merino
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« Reply #5 on: December 12, 2010, 08:38:28 PM » |
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Illinois is known as a "contract state" and a "four corner state". The judges usually default to what is in the contract and what is in the four corners of the contract. If it is in the contract that his liability is only the inspection price, then most likely that is all they will get; I have that in my contract. I am not sure about the 2 year limitation, because we have to keep records for 5 years. Anyway, if it is in the contract then the judges usually allow it; I know a guy who was sued, and when it got to court the judge ruled in his favor because the contract stated that the client would go to arbitration before filing a lawsuit, the client did not go to arbitration, thus she had breached the contract and she lost the suit. That is the "four corners" approach.
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Dominic Maricic
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« Reply #6 on: December 12, 2010, 09:20:52 PM » |
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That's just it, the limiting to cost of inspection never gets used but here it did and succeeded (which creates precedence). The limitation from the state was longer than 2 years but the contract limited it to 2. So this case went like Mike mentioned, per contract.
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Casey Patten
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« Reply #7 on: December 12, 2010, 09:40:11 PM » |
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Nice post Dom. Though it makes one wonder; did the plaintiffs file this on their own or have their own attorney? Sure seems like they missed several steps in the original trial/hearing of this. All the more reason to have your bases covered.
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Title: Root River Inspections URL: www.arochestermnhomeinspector.comBody: Root River Inspections serves Rochester, Winona, Red Wing, Austin, Albert Lea and surrounding Minnesota areas. Meta Key: Rochester home inspector, Winona home inspector, Red Wing home inspector, Albert Lea home inspector, Austin home inspector Meta Description: Home Inspections for Rochester, Austin, Winona, Albert Lea, Red Wing, and other Minnesota areas. URL Path: home-inspector-rochester-winona-red-wing-albert-lea-austin-minnesota.html |
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Michael Merino
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« Reply #8 on: December 12, 2010, 09:42:39 PM » |
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I noticed as I read the decision, that the judges decided that two parties entering a contract have the ability to negotiate the terms. Thus, the plaintiffs had the ability to strike those provisions from the contract and/or negotiate them with their inspector. Also, Illinois does not require insurance nor has the legislature laid out any laws about the remedy for an error or omission, thus leaving this to the negotiated contract. Every contract is negotiated, either they sign and accept, or they actively try to change the terms before signing. It is nice to know that a contract still has some merit in this country, at least in this state.
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Bob Elliott
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« Reply #9 on: December 13, 2010, 12:15:09 AM » |
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They also have the right to say they did not understand what they were signing.
Good idea to send them a copy before springing it on them at the site.
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Michael Merino
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« Reply #10 on: December 13, 2010, 12:24:27 AM » |
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They also have the right to say they did not understand what they were signing.
Good idea to send them a copy before springing it on them at the site.
Read the desicion Bob. The judges actually said they did not have that right once they signed the contract. |
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Bob Elliott
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« Reply #11 on: December 13, 2010, 12:50:41 AM » |
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In Illinois you must understand what you are signing.
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Michael Merino
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« Reply #12 on: December 13, 2010, 12:54:14 AM » |
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The judges decided that they knew and understood what they were signing.
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Bob Elliott
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« Reply #13 on: December 13, 2010, 02:45:32 AM » |
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Hey cancel the E and O then, ha ha.  One case and one judge does not mean we can all spill hot coffee at McDonalds and make a bundle and the same may apply here. I just would not be jumping for joy as of yet. |
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Dominic Maricic
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« Reply #14 on: December 13, 2010, 01:49:26 PM » |
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You're 100% correct. All it means is that there's an extra case to use for your defense. There's no guarantee.
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Tim Spargo
Jr. Member
Karma: 2
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Lancaster, CA
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« Reply #15 on: January 09, 2011, 01:29:50 PM » |
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Interesting....
Everyone in the system has an axe to grind with this stuff... Our industry has the most at risk, but little say so.
Deeper pockets would like to see this *not* be held as precedence, as both parts of the system (the Municipality and the Private system) benefit from what is *usually* LEGAL EXTORTION to a Home Inspector, or many other small business's.
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Bob Elliott
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« Reply #16 on: January 09, 2011, 07:25:03 PM » |
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So you are saying this is no different than for every day American voters. |
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