Avoiding Litigation: The Weapons of War

Lawsuits are far more prevalent than most inspectors are aware of, simply because inspectors don’t run around telling each other “Hey Guys, guess what? I’ve been sued!” It’s obviously embarrassing to be sued, besides which the complaint is usually grossly overstated to make the inspector seem like a blithering idiot or, worse, a mass-murderer. Attorneys are notorious for such hype. In addition, the lure of money and not a passion for justice drives many attorneys. And this is reflected in most of the complaints that I’ve read which were grossly overstated or woefully inaccurate. And the sad truth is that no one seems to give a damn. It’s as though all the attorneys remain in cahoots with each other while the costs continue to mount. The factual discrepancies in the case that I’ve just mentioned were never once pointed out by anyone except the inspector, as if the defense attorney didn’t want to embarrass the plaintiff’s attorney by pointing out blatant factual errors. Isn’t that negligence? If it isn’t, I don’t know what is, but attorneys always manage to get away with such deception. So, don’t expect justice, or anything approaching that ideal. What inspectors are threatened with is tantamount to guerrilla warfare, or at least that’s how I’ve come to regard the threat to my livelihood, and I act accordingly.

First of all, inspectors are likely to find themselves ambushed and outnumbered by a team of attorneys that includes experts with sophisticated weapons, in the form of specialized instruments. And, with rare exceptions, these so-called experts are nothing more than mercenaries who’ll fight for whatever side is paying them. So I’ve elected to carry weapons that are at least as sophisticated as theirs. I’ve argued this in other articles, so I won’t repeat the argument here, but let me give you one example of how useful such weapons can be in avoiding lawsuits. I was inspecting an expensive on-slab residence that had less than ideal drainage conditions, but nothing that seemed threatening, and I’m not paranoid enough yet to recommend an expert for every condition that is less than perfect. Anyway, inside the house, there was moisture damage on a wall shared with a stall shower, and also some on an adjacent wall that I reasoned must have migrated from the shower area and been drawn into the plaster by capillary action. However, a series of moisture meter readings led me further and further away from the shower, which I ultimately concluded was not leaking, and down a hallway. Of course, this was the exact opposite of what common sense and the visual evidence had suggested. To cut to the end of the story, destructive testing revealed an underground water source that was contributing to high moisture content within the walls, and proved that the slab had the equivalent value of a reed mat laid over a swamp. Would a lawsuit have resulted? I’ll never know. But, without the evidence of the moisture meter readings, it’s not likely that destructive testing would have been undertaken. And, if it hadn’t, a multi-million dollar lawsuit could have resulted in which I would have probably been branded as a criminally negligent fraud who had willfully and maliciously jeopardized the lives of countless innocents. And please don’t delude yourself into thinking that industry standards would protect you in such a case, because they won’t. You won’t be sued for breach of contract, but for negligence! Ask any expert. But let’s consider other weapons that are at our disposal.

The best weapons of all are computerized report-writers. To continue with the military metaphors, they’re like wearing a flak helmet and body-armor! And let me warn you that if you’re still using paper check sheets you’re a sitting duck because, as I’ve also argued before, they only offer the equivalent protection of a paper shield against an AK47. It doesn’t matter how much you know, or how skillful you are, you cannot possible retain and recall all the knowledge that you need to protect yourself. And the beauty of computerized report-writers is that they allow you to continuously refine and polish your reports to afford better and better protection. Here’s one admittedly insignificant example. A few years ago, I got a letter from a client/attorney berating me for not having warned him about the potential for bacterial infection lurking inside the pipes of his hydro-spa. The truth is that it had never even occurred to me. I wrote back, saying that there had been no evidence of bacterial residue when I tested it, which was true. Then, I explained that he probably hadn’t used it for a while, and reminded him that I was not responsible for his poor housekeeping. I didn’t hear from him again, but you can see what I’m getting at. Now, thanks to that skirmish, I’m much better informed and more cautious, and every one of my narratives regarding hydro-spas recommends that they be cleaned periodically with an anti-bacterial agent. I never even have to think about that issue anymore. Of course, I’m not suggesting that anyone would be likely to forget about a complaint from an attorney, and I relate the story only to make a point. For instance, how many of us can remember every water heater, every window, and every furnace that’s been recalled, or just how much a beam or joist can be legitimately notched and where? But you could have information like this at your fingertips. And, believe me, I’d be too scared to go into the field without it, because ever since my first encounter with the enemy the inspection business has come to represent a more or less continuous regrouping in preparation for the next attack. Let me give you another example, this time one that is a little scarier.
 
I was hired to inspect a magnificent property in the mountains overlooking the Pacific Ocean, and I was almost finished when the seller informed me that, because the builder had been slow in responding to some essential repairs when the house was new, he had hired a construction defects expert to make an evaluation. The report was sixty pages long, and incredibly contentious. It recommended that the potable water system be removed and replaced, because of an alleged patina forming on the outside of the copper pipes. I was aware that acid flux and an eddying process at fittings that can be caused by inadequate deburring after the pipes have been cut can create this patina and actually predicate leaks, and I even have a narrative that cautions my clients about this rare occurrence, but I was unable to confirm any patina on the visible areas of the pipes. In addition, the expert recommended that the stucco be removed and that all of the dual-glazed Andersen windows be replaced, which he predicted would leak. And that was just part of his report. Needless to say, I added a narrative to my report that confirmed that I was not willing to contest with an expert and, consequently, would not endorse any component or condition that had been identified by him as needing service or a second opinion. This so-called expert is obviously an incredible asset to any attorney, and he certainly had me ducking and running for cover! Therefore, let me share with you what I call my first line of defense.

Every major component or condition that I report on begins with a substantial narrative that is designed to reasonably limit my liability, educate my clients, and confound attorneys. For instance, since we’ve been talking about plumbing, this is one of the narratives that’s included with my evaluation of plumbing systems:

We evaluate plumbing systems and their components in accordance with state or industry standards, which include testing for pressure and functional flow. Plumbing systems have common components but they are not uniform. In addition to fixtures, components typically consist of gas pipes, potable water pipes, drain and vent pipes, shut-off valves that we do not test, pressure regulators, pressure relief valves, and water-heating devices. The best and most dependable water pipes are copper, because they are not subject to the build-up of minerals that bond to the inside of galvanized pipes and gradually reduce their inner diameter and restrict the volume of water. A water softener will remove most of these minerals, but not once they are bonded within the pipes, for which there would be no remedy other than a re-pipe. The water pressure within pipes is commonly confused with water volume, but whereas high water volume is good high water pressure is not. In fact, whenever the street pressure exceeds eighty pounds per square inch a regulator is recommended, which typically comes factory preset between forty-five and sixty-five pounds per square inch. However, regardless of the pressure, leaks will occur in any system, and particularly in one with older galvanized pipes, and commonly when the regulator fails and high pressure begins to stress the washers and diaphragms within the various components.     

In addition to a narrative describing water pipes, my reports include one for drainpipes:

We attempt to evaluate drain pipes by flushing every drain that has an active fixture while observing its draw and watching for blockages or slow drains, but this is not a conclusive test and only a video-scan of the main line would confirm its actual condition. However, you can be sure that blockages will occur, usually relative in severity to the age of the system, and will range from minor ones in the branch lines, or at the traps beneath sinks, tubs, and showers, to major blockages in the main line. The minor ones are easily cleared, either by chemical means or by removing and cleaning the traps. However, if tree roots grow into the main drain that connects the house to the public sewer, repairs could become expensive and might include replacing the entire main line. For these reasons, we recommend that you ask the sellers if they have ever experienced any drainage problems, or you may wish to have the main waste line video-scanned before the close of escrow. Failing this, you should obtain an insurance policy that covers blockages and damage to the main line. However, most policies only cover plumbing repairs within the house, or the cost of rooter service, which are usually relatively inexpensive.

As you can imagine, narratives of this type can actually prevent an attack, but they’ll only serve as pressure bandages to stop the bleeding once you’ve been hit. Remember, the best defense is an offense. For this reason, inspectors need an arsenal of bullet-like narratives, and an endless supply of them can be stored in any computerized report-writer with every component of a system, which enables inspectors to sight and fire on anything that seems threatening. Let’s face it, how many inspectors could name all the brands of allegedly defective ABS pipes, let alone the specific batch numbers of those that are guaranteed to fail? And how many know the water heaters with defective burners that were sold under different brand names, or those that have dip tubes made with defective polymers that will self-destruct? And what about the defective materials and components in all the other systems that we evaluate? I’ve confirmed dangerously high levels of carbon-monoxide gas that could never have been detected by the senses!

Inspectors are willing to accept the risk of evaluating hundreds of diverse components and conditions, but very few of them are blessed with photographic memories and instant recall, and most of them simply couldn’t hope to match wits with a team of attorneys in a battle of words. And the truth is, although I’m no expert and certainly not qualified to give legal advice, I’ve been out there for a long time. I’ve been shot at and missed, and hit a couple of times. And there’s nothing more gratifying in life, as they say, than being shot at and missed, but even if you are hit you won’t see or hear anything. You’ll suddenly find yourself down, and wondering what happened. Anyway, you’re probably growing tired of all the military metaphors by now, so let me end this article by asserting that for many inspectors it truly is a war zone out there. So if we want to survive, or until we can boast of a judicial system that passionately defends truth, justice, and the common man, we really do need to have camouflage, body armor, sophisticated weapons, and all the ammunition we can carry.