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Boxcars

There’s nothing like a birthday to drive home the point that life has stages: the Immortal Stage that lasts until about age 55 and the Mortal Stage where I am now gaining seniority at a breathtaking pace. Today, I am turning 66. A pair of sixes. Boxcars.

Ever since I became the Irish Patient, I’ve become much more conscious that life has limits. On length. It’s a depressing thought and one you need to let go of for your own sake, as well as the sake of others within your gravitational pull.

Fortunately, there are other spheres where life holds considerably fewer fixed limitations: happiness, job satisfaction, friendships, personal achievement, learning and the like.

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Don’t Create Problems Where None Exist

One aspect of human nature that has always baffled me is the tendency on the part of some people to create problems where none really exist, notwithstanding that I have been living with a member of that tribe for the last thirty-one-and-a-half years .

To these folks, a rainy day at the beach is an enormous problem. To me a big problem would be something, say, on the order of getting a leukemia diagnosis. Do you see the difference?

Several years ago, I was out sailing with some friends and one of them accidentally threw my anchor overboard. Unfortunately it wasn’t connected to the boat at the time. When he realized what he had done, he was extremely upset and nigh pathologically remorseful. I told him to forget about it. But he wouldn’t let it go.
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Strengthen Pre-Inspection Agreements to Avoid Lawsuits

One of the techniques that I stress in my home inspector training with the Law and Disorder Seminar for reducing one’s potential for being successfully sued is for home inspectors to strengthen their Pre-Inspection Agreements with clauses that narrow a claimant’s ability to bring a claim by designating contractually the exact circumstances under which the inspector will be amenable to suit.

One of those circumstances is the venue wherein a claim may be brought. As a home inspector, or any business performing services pursuant to a contract, you never want to be in any state or federal court. And for a myriad of reasons.

For one thing, in the context of a residential real estate inspection, any lawsuit is bound to involve multiple parties, a circumstance that is guaranteed to increase the cost and decrease the likelihood of resolution. For another, the cost for the plaintiff to get into court is low. Filing fees for plaintiffs are pretty modest. The cost to you to get out of court, on the other hand, will be quite high. Not only will you have the plaintiff to contend with but your fellow defendants, as well. And while the plaintiff may be very agreeable to letting you out of the suit, your fellow defendants, who will have filed their own cross-claims against you, may not be.

Most home inspectors of my acquaintance have already figured this out and, so, have clauses in their Pre-Inspection Agreements that mandate that all disputes arising from the inspection must be brought in Arbitration. If your client’s attorney has read his client’s Pre-Inspection Agreement, he knows that he will not be able to join you in with the seller, the seller’s agent and broker and his client’s agent and broker. He’ll have to prosecute the case in two separate venues, which he will be loathe to do. Especially if he has heard from me the manifold reasons why you have no liability.
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Boxers Or Briefs?

There’s a well-developed discussion that attracted a lot of commentary on one of the industry message boards that I visit regularly on what reporting methodology, Checklists or Narratives, is better.

The discussion centers on the question of which one is more likely to provide a defense in the event that a claim eventuates from the inspection. What was interesting to me was that, while the narrative format was by far the preferred methodology, each reporting format had its supporters and both received what I thought were insightful critiques of their respective shortcomings.

In the checklist format, the inspector follows a sequential series of questions about the home and simply checks a box to indicate whether the issue was “Satisfactory”, or “Needs Repair” or was “Not Inspected”. Some forms provide a limited space for annotating the reason that an item “Needs Repair” or was “Not Inspected”.

In the narrative format, the inspector states precisely what was inspected in a narrative form and gives a brief explanation why the item’s condition was satisfactory or not.
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Arbitrators Don’t Need to Know the Home Inspection Business

A question that comes up fairly frequently at my home inspector training with the Law and Disorder Seminars when I am extolling the virtues of requiring disputes to be settled in Arbitration is whether or not there should be a requirement that the arbitrator be “familiar with the home inspection business.” And many home inspectors have such requirements in the Arbitration Clauses of their Agreements.

As I have written elsewhere on this site, home inspectors have a very dim view of the American legal system and do not expect to get a fair shake. So some of them, in an effort to level the pitch or stack the deck – choose your own metaphor – have inserted this additional requirement into their Agreements.

What I tell them is this: when I was in the Army, forty-some years ago – yeah, I know, I don’t look that old – the Uniform Code of Military Justice had recently been revised to give Enlisted Men who were facing Courts-Martial the right to have one Enlisted Man on the Court-Martial panel. The change was widely hailed as a victory for Enlisted Men [and Women]. The reality for those exercising this “right” was that the Enlisted Man selected to fulfill it was always some cranky senior NCO with a chest festooned with decorations and a lengthy series of service stripes on his sleeve.

It didn’t take long for Enlisted Men to realize that they were much better off with a baby-faced Lieutenant who would actually listen to the evidence before making up his mind.
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5 Stages of Home Inspection Claim Grief

A few weeks ago, I had a conversation with a home inspector in Connecticut. The inspector was trying to neutralize a claim by a former client over asbestos contamination issues with a property that he had inspected some months previous.

Now, as a general matter, the determination of environmental hazards and toxins is some distance outside of extant home inspection standards of practice (“SOP”) and Connecticut, which has its own state home inspection SOP, is no exception. Unfortunately, Connecticut is no exception only because the Connecticut Department of Consumer Protection issued a letter clarifying the fact that notwithstanding the fact that the law, itself, states that inspectors are required to inspect for and report asbestos, in reality they do not have to. Thus, as elsewhere, Nutmeggers are in the very best of hands.
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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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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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