When one has consulted on close to 600 home inspection claims, there is a powerful temptation to conclude that one has seen every goofy claim that there could possibly be and I was really beginning to think, back in the summer of 2009, that I had. Then I got a call from an inspector friend in a populous Mid-Atlantic state.
As sometimes happens, the first notice that the inspector had of the claim was when the county sheriff served him with the lawsuit. Now it is not impossible to persuade a lawyer to drop a claim against a home inspector once a lawsuit has been filed and I have succeeded in doing so a number of times but it is considerably more difficult once there has been a substantial calorie-burn on the part of the plaintiffs’ attorney, as there was in this particular case.
But before undertaking my own calorie-burn, I wanted to ascertain the plaintiffs’ attorney’s willingness to be persuaded. To my considerable delight, he vindicated my lofty notion of my personal charm by agreeing to forbear taking any adverse action against the inspector until I had assembled a compelling litany of reasons why he should drop the case against the inspector.
Then I took a closer look at the Complaint which revealed that what the Plaintiffs were aggrieved by was the inspector’s alleged failure to detect termite damage that the plaintiffs, themselves, did not discover until 11 days shy of a year after the original inspection.
Leaving aside the fact that you have to wonder how apparent this problem really was when the folks living in the house do not notice anything for close to a year but what was really remarkable about the Complaint, itself, was that it contained not only dispositive proof that the termite damage had been concealed at the time of the inspection but also assertions by plaintiffs that could not possibly be true, thus, impeaching their credibility in their very own words.
For reasons that I hope I live long enough to understand, there are a lot of lawyers who must think that they have to prove their cases in their Complaints. And so they include, as exhibits to the Complaint, every shred of evidence in their possession in the apparent belief that it makes their case more compelling. The reality is that it seldom does and, in an astonishingly large number of cases, can actually be quite damaging to the plaintiff’s case. It certainly was in this one.
For one thing, in their Complaint, the plaintiffs maintained that they “first learned of the severe termite infestation and . . . damages on or about March 8, 2009” when the plaintiff husband discovered “over five-hundred (500) swarming termites” in the lower level laundry room.
There’s one problem with that averment. It does not comport with the well-established behavioral ecology of termites. Termites require high temperatures and long days in order to “swarm,” two conditions that did not obtain in the date range averred.
Far more devastating, however, was the plaintiffs’ lawyer’s decision to include, as an Exhibit to the Complaint, a digital video disc of the plaintiffs’ “discovery” of the termite infestation that conclusively demonstrated that the damage could not have been discovered in a limited visual inspection. Indeed, the plaintiff husband, himself, twice remarks on the video that “I can’t believe it was all hidden.” Plaintiffs’ expert engineer also agrees with that observation, saying “ I can’t believe how they [the sellers] hid [the damage].”
Later in the video, the husband further opines that “There were no signs whatsoever!” And, again, the expert engineer agrees with that observation, stating “Yeah, [unintelligible] I call it [unintelligible]. That’s what people do.”
Those colloquies between the plaintiff and his expert witness demonstrated beyond peradventure that the damage was effectively concealed from both the plaintiffs and their inspector. They further demonstrated that the infestation would have remained “all hidden” because “there were no signs whatsoever” for ages had the plaintiffs not decided to remodel their home and that they were, in fact, not “victims” of a negligent inspection but bald-faced opportunists looking to stick the inspector with the tab for the renovation.
Keep this in mind as a valuable piece of home inspector training.
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