Joe Ferry’s Home Inspector Training Blog

The Expense of Home Inspector Meritless Claim Defense

If you ever find yourself being named as a defendant in a lawsuit alleging that you were professionally negligent in conducting your inspection of the plaintiff’s prospective home, I have really good news for you. You are going to win. The overwhelming majority of lawsuits alleging professional negligence that are actually tried to verdict result in the exoneration of the professional defendant.

Why do you suppose that is? It is because professionals are, by and large, pretty competent at what they do. They know what they are doing, how to do it, follow an established protocol and do it every day.

Well, if that’s the case – and it is – you have to ask yourself this question: Why are there so many unfruitful professional negligence lawsuits and what can be done to stop them?

Most lawsuits alleging professional negligence stem from what attorneys term a “bad result” or a “bad outcome.” A patient acquires an infection during surgery. Never mind that the surgeon took every conceivable precaution to prevent that from happening, In the patient’s mind, he is responsible.
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The Six Home Inspection Claim Categories Are All Defensible

Rare is a home inspector training Law and Disorder Seminar that does not have a few – and often several – casualties of war among the attending home inspectors – the multi-front war between them, their unreasonable and unrealistic clients, their referring real estate agents and, all too frequently, their insurance companies. They all seem to think that it is the inspector’s responsibility to “make things right”, even if he has no culpability whatsoever, which, in my experience, he almost never does. Here’s why.

Almost every home inspection claim will fall into one of the following six categories.
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Reputation Management: There’s an app for that!

One thing that I have decided after five years of total immersion in the trials and tribulations of home inspectors is that I could never be one.

Now, my father was a union carpenter and worked for decades as such on literally thousands of houses constructed in Philadelphia, once known as the City of Homes, and its suburbs. On weekends, he would take a busman’s holiday and work on our house, conscripting his home-grown workforce as gofers. No tradesman ever came into our house to do anything. My dad did it all: painting, wall-papering, plastering, masonry, electrical, plumbing, roofing, tile work.

One day he decided that we needed to convert to gas heat. And took a sledge hammer to our ancient and massive coal furnace. Now that furnace could take a punch but, by and by, it yielded to my dad’s John Henry-like determination. Then he installed and plumbed the gas boiler.
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Underbussing is Now a Reality TV Show!

HGTV Show Underbusses Home InspectorsThere is a current television show whose host maligns home inspectors for not discovering defects he was only able to discover through using a sledgehammer and other intrusive means.

Home inspectors were immediately taken aback by the show’s message, and rightfully so. Several asked me to watch a few episodes to gauge how the show would play in the meritless claim game.

After watching a few episodes, and switching between disbelief and comedic release at the host’s house destruction, I came to a firm conclusion.
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Dirty Harry and Home Inspection: You Don’t Need to Pay

There’s a scene in the original Dirty Harry movie that resonated with me when I first saw it and that I am frequently reminded of in my practice of advising home inspectors. Clint Eastwood, as Inspector Harry Callaghan, is hustling against a deadline set by a lunatic serial killer, based on the Zodiac killer that plagued San Francisco in the early ‘70s. Along the way to his rendez-vous with the killer, Harry is accosted by some street toughs whom he handles methodically despite being outnumbered. They keep coming back for more, however. Finally, exasperated by their perseverance, he whips out the huge .44 Magnum, sticks it in the face of one relentless punk and says “You don’t listen, do you, Asshole?”

Recently, one of the home inspectors who participates in my ClaimIntercept had this unhappy experience. The inspector conducted the inspection in August and was accompanied by the client’s agent on his rounds. He reported his findings in the normal fashion and everyone seemed to be happy with the results.
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Look at Me Now: Defendants Aren’t Always Guilty

A week or so ago, I received an email invitation to attend Alumni Weekend at my law school alma mater, the Temple University Beasley School of Law. And because this is my class’ Silver Anniversary year, there is additional hoopla planned for us. Attached to the email was a list of all of the members of the class and their current contact information.

Glancing at the list, I was surprised at how large the class actually was on the one hand and how few of the names I actually recognized on the other. Our class includes a former US Congressman and a current one, senior partners at large Philadelphia law firms, Federal and State Court judges, top homicide prosecutors and criminal defense attorneys, and a surprising number of married couples. Who knew law school was such a “meet” market?

Law school, of course, is a much different experience than a resident college where you’re interacting with classmates continually: in class, in the dorms, in the dining hall, in the gym, on the quad and at off-campus student hangouts.
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Risk, Its Place in the Home Inspection Industry and How to Combat It

The recent earthquake that hit near Japan set me to thinking about emergency preparedness in general and disaster-preparedness, in particular. The earthquake-prone nation is being widely praised for the strength of its building codes which contemplate the need for buildings to be able to withstand these inevitable periodic massive shocks to their structural integrity. And by all accounts, all things considered, the minimal damage that was sustained by buildings in cities closest to the epicenter of the huge quake has vindicated the decision to implement those precautions.

Where I live, we seldom experience earthquakes, a fact that prompted the actor David Morse [St. Elsewhere] to move here with his Philly-born wife, after an earthquake destroyed their family home in California in 1994. And the ones we do experience tend to be at the lower end of the Richter Scale. I personally have never experienced one and apparently slept through one that took place here in the early ‘70s.

We do get our share of capricious weather, however – Nor’easters, blizzards, hurricanes and the occasional tornado – for which you do have to be prepared. As President Kennedy sagely observed, “The time to fix the roof is when the sun is shining.” The time to plan for disaster is before disaster strikes.
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The Importance of Home Inspector E&O Insurance

I am continuously surprised at the number of inspectors who do not carry professional liability insurance or, as it is popularly known, Errors and Omissions Insurance for home inspectors (“E&O”). When I ask inspectors who attend my home inspector training at the Law and Disorder seminar whether or not they carry E & O insurance, between 40 and 60 percent of them say that they do not. That number is constantly diminishing, however, as more and more jurisdictions have introduced laws requiring that home inspectors become licensed and have made the carrying of E&O insurance a condition of licensure.Some inspectors who do not carry E&O would, perhaps, like to carry it but simply do not conduct enough inspections to be able to afford it. Those inspectors generally leave the profession when carrying professional liability insurance becomes a condition of having a license.

Many others do not carry it because they think that it is “too expensive” and/or that it “paints a target on your back” – that is, it makes you more likely to be sued than if you had no insurance.

Whether or not a given product is “too expensive” is something that individual consumers have to determine for themselves after conducting a cost-benefit analysis and considering competing products.
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The Story of Joe Ferry’s ClaimIntercept and How to Receive It

When I first began presenting my home inspector training at the Law and Disorder Seminar back in 2007, many of the inspectors in attendance would approach me afterward and ask if they could retain my claim squashing services on a pre-paid basis – a pre-paid legal of sorts.  While I appreciated the sentiment, I was very wary of providing such a service for a number of reasons.  For one, I did not have any idea of how to price such a service or, indeed, what services to provide.  Or what the inspectors’ expectations might be.  So I simply said that it was not something that I had ever considered doing but would give the matter some thought.

Three years later, after having defeated over 150 claims aborning, I really did begin to give it some very serious thought.  I thought about how truly ridiculous the overwhelming majority of claims against home inspectors are.
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Caution: Clause Interactions May Be Hazardous To a Home Inspector’s Wealth

Over the past five years, I have probably reviewed the pre-inspection agreements of about 400 home inspectors, either because I was responding to a claim that was being made against them or because they wanted me to review their agreements for strength, comprehensiveness and enforceability.

As a result, I make frequent research excursions via online legal databases to which I subscribe to ascertain a particular state’s relative friendliness or hostility to the sort of contract clauses that so frequently appear in home inspectors’ pre-inspection agreements.

For example, some nanny states are hostile to Limitation of Liability clauses on the grounds that they are anti-consumer and/or tend to vitiate the benefit of the bargained-for service while others routinely enforce such clauses on freedom of contract grounds.

On the other hand, clauses that require disputes to be adjudicated in Arbitration are universally upheld.
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