So I wrote a rather lengthy letter to the plaintiffs’ attorney that explained in considerable detail exactly why he would be better off – and his clients would be immeasurably better off – without having the home inspector hammering away at length the manifold reasons why he was not responsible.
I first pointed out that the inspector had called out a lengthy litany of issues with the property, to wit: the roof was beyond its design life range and showing signs of deterioration; the gutters were clogged; the flashing was tarred; there was siding contact with the soil, a condition that could lead to the very issues of which his clients were then complaining; the exterior water had been shut off; there were settling cracks in the foundation; the toilet in the bathroom was loose; there were popped nails and tape separations throughout the interior; and efflorescence and condensation on the foundation walls.
Had any of the defects of which his clients were now complaining been extant and observable at the time of the inspection, I told him, they would have been reported by the inspector. That is the nature of a limited, non-invasive, visual inspection. One can only report what is observable at the time. Thus, the inspector was not negligent.
I then pointed out that his clients’ failure to follow up on the inspector’s findings and recommendations was, itself, negligent, a condition that would bar any recovery from the inspector.
I then explained that it could easily be demonstrated that his clients had lied about the termite “swarm”; that the video that he had magnanimously – if stupidly – included as an Exhibit to the Complaint not only completely exonerated the inspector but thoroughly impeached the credibility of his expert witness.
I also advised him that the claimed damages were vastly overstated and that the depreciation applicable to the forty-six year age of the home would diminish the damages to a de minimis level not worth crying about.
If that were not enough, I directed his attention to the fact that a recent and very well-reasoned lower court opinion held that the state home inspection licensing law had pre-empted all common law claims against home inspectors.
Finally, I advised him that even if the inspector had been negligent – which he had not been – and even if there were no recovery-barring contributory negligence, and even if his clients had actual damages, and even if a court had not ruled that the Home Inspector Licensing Law did not preempt his clients’ claims, their recovery would be limited to the fee charged by the inspection.
Then I told him that, even though the case against the inspector was riddled with difficulties – the absence of negligence, the admissions by both the plaintiff and his expert that the damage was “hidden”, the contributory negligence problem, the contractual time limitation on bringing the suit, the recovery limitation, and the licensing law pre-emption – the case against the sellers had none of those difficulties. And I suggested that he drop the suit against the inspector and instead use the inspector as a fact witness for the plaintiffs against the sellers.
When I called the attorney after having given him a few days to digest the unwelcome news I had delivered, he seemed very amenable to doing the right thing and dismissing the claim against the inspector. He then requested time to “discuss the issues” with his clients and gave the inspector an indefinite extension of time in which to respond to the Complaint.
“Sure” I said, “take all the time you need.”
The result next time.