A Deck Collapse, Now . . .

One of my inspector friends recently called me with some disturbing news. Both his former client and the client’s insurance company were suing him over an inspection that he had performed in July of 2008.

The inspection was pretty standard, a few issues but nothing not easily and inexpensively corrected. The property had a rear deck off of the first level which was original to the seventeen year-old home and the inspector described the deck construction as “average” with two-by-eight joists and “adequate” vertical support.

Unfortunately, the deck collapsed this past February under the sheer weight of ice and snow accumulation. The homeowner filed a claim, alleging some $57,000 in damages, against his homeowners insurance policy and his insurance company denied the claim for the most part, agreeing to pay only $10,000.

By and by, the inspector was served with a lawsuit filed jointly by the former client and his insurance company claiming that the inspector had negligently failed to report the defective deck. The client was seeking to recover the $47,000 that the insurance company would not pay and the insurance company was seeking to recover the $10,000 that it did pay, pursuant to the subrogation clause of the client’s homeowners insurance policy.

You really can not make this stuff up.

The inspector was justifiably outraged by this development and wanted to fight it. That is, he didn’t want to turn it over to his insurance company to handle because he knew that, despite the absurdity of the claim, it would very likely cave. So he asked me to see what I could do.

So I called the plaintiffs’ attorney to see if I could cajole him into dropping the case because plaintiffs were going to lose and then they would all be exposed to massive retaliation. He made a pretty good point that he had an “expert” home inspector who told him that he had a case and was, thus, not buying my doomsday scenario.

So we had to go to Plan B. I wrote him a letter that explained in considerable detail exactly why the plaintiffs stood no chance of prevailing against the home inspector.

For one thing, the deck performed flawlessly for over thirty months after the inspection. It was not until the extraordinarily snowy winter of 2010-2011 during which the deck withstood over eighty inches of snow accumulation without collapsing before finally succumbing when an additional forty inches fell during the Groundhog Day storm of January 29 to February 2, 2011. Thus, there was no causation. The inspector did not cause the collapse. An unsustainable load did.

For another, the deck was built in 1991. Decks have an average life expectancy of fifteen years and this deck was seventeen years old at the time of the inspection and nearly twenty at the time of the collapse. Thus, there are no damages, either.

Moreover, the inspector, whose command of the factual issues was unequaled, was more than willing to try the case himself, a task that he had undertaken successfully once before.

Finally, following the plaintiffs’ mortally certain defeat, there would probably not be enough zeroes to calculate the inspector’s damages in the sure-to-follow bad faith suit against all parties to this fiasco.

A week later the plaintiffs’ attorney called to tell me that the insurance company had been scared straight by my letter and had instructed him to withdraw the suit. It even agreed to pay its insured some extra bucks on his claim to induce him to go along with the program.