Recently a home inspector contacted me after receiving notice that his firm was being sued for failing to detect mold in a home that he had inspected several months before. Of course, he was not conducting a mold inspection. And the claimant was not the one for whom he had performed the inspection.
And folks still give me odd looks when I tell them that I never see a legitimate claim!
I asked him if the suit was the first notice that he had had of the claim. It was not. He had received a demand letter from the plaintiff’s attorney a few months before and turned it over to his insurance agent who forwarded to the inspector’s insurer.
A few weeks later he received a letter from the insurance company advising him of its “coverage position”, to wit, since the claim implicated a mold claim and since he did not have coverage for mold, it would not be providing any coverage.
So he contacted a local attorney who apparently did not know how to terminate a claim from a claimant to whom his client owed no duty of care, for whom his client had not performed an inspection and for an inspection his client performed that excluded mold detection.
You can’t make this stuff up.
So the claimant eventually sued the inspector along with the seller and the real estate agent. So now the local attorney is preparing “a response” to the suit.
Notwithstanding that, the inspector wanted to know if I could help in the matter.
This is the kind of situation that ranks very high on the list of tasks I hate to assume. Not only has the case moved from the demand letter stage where my intervention has a ninety-seven percent success rate to the lawsuit stage where I have only a seventy percent success rate but now there’s a local attorney involved.
The only proper “response”, of course, since this jurisdiction specifically immunizes home inspectors against suits arising out of a home inspection by anyone not in privity of contract with the home inspector, is to call the plaintiff’s attorney and ask him politely to voluntarily dismiss the inspector because a. he owes no duty to a guy he has never had any contact with and is, in fact, by statute immune from such suits; and b. even if he did owe a duty, detection of mold is outside the SOP.
Most sensible attorneys confronted with those two dispositive and incontrovertible facts would say something like “Well, if what you’re saying checks out, then sure. Of course, I have to talk to my client first.” When I apprised plaintiff’s attorney of this, he said “Well, then why doesn’t he litigate it?”
So I sent him a follow up email asking him to voluntarily dismiss by this Friday lest the home inspector file a motion to dismiss and seek appropriate sanctions from his client for his unjustifiable refusal to dismiss voluntarily.
This entire nightmare scenario would never have gotten anywhere near the lawsuit stage had this inspector contacted me immediately upon receipt of the demand letter. A swift response delineating the reasons why the claim is doomed and evincing a firm resolve to defend and seek retribution upon vindication remains the gold standard for stopping unmeritorious claims out of the gate.
Most professionals, especially those in the real estate industry, know what the term “Time Is Of The Essence” means in contracts, that a failure of a party to act within the allotted time constitutes a breach of the contract.
It is equally “of the essence”, if not more so, when you find yourself on the receiving end of a demand for damages from a delusional claimant.