Limited liability clauses in Oregon

[Linda Arian]

Hi all, my husband and I are new members with Inspection News, but have been inspecting in Oregon for 9 years now. I'm looking for information regarding contractual limited liability, both in dollars amount and length of time for liability. Have been looking for Oregon law on this subject and what other inspectors have in their contracts. Any information you can share on this topic will be helpfu.

[Lon Henderson]

Hi Linda,

Welcome to the forum. Even though I have done around 4500 inspections over 15 years, I haven't been in this forum a long time, but as long as you come filter through some of the personal crap that too often intrudes into threads, you can definitely pick up some useful information.

My contract has lots of (and familiar) inspection limitations and caveats. In Colorado, we don't have a SOP or licensing. But here is my actual "Limitation on Liability" I am told that one disgruntled customer took my contract to an attorney who told him to negotiate the best deal with me he could because cracking my contract wouldn't be worth the effort. (Not to mention, I had not made a mistake or done anything wrong in this instance, but the attorney couldn't know that)




LIMITATION ON LIABILITY



INSPECTOR’S LIABILITY FOR MISTAKES OR OMISSIONS IN THIS INSPECTION REPORT IS LIMITED TO A REFUND OF THE FEE PAID FOR THIS INSPECTION AND REPORT.
The liability of Inspector’s principals, agents, and employees is also limited to the fee paid. This limitation applies to anyone who is damaged or has to pay expenses of any kind because of mistakes or omissions in this inspection and report. This liability limitation is binding on Client and Client’s spouse, heirs, principals, assigns and anyone else who may otherwise claim through client. Client assumes the risk of all losses greater than the fee paid for the inspection. Client agrees to immediately accept a refund of the fee as full settlement of any and all claims which may ever arise from the inspection. Any refund paid, is not, necessarily, an admission by the inspector of an error, omission, or mistake.



In case you are wondering, I gave the guy his fee back as a favor to the agent who I still do inspections for.

[Linda Arian]

Thanks for the reply. We're doing another contract review and I will show this to the attorney.

[Garry Sorrells]

You may want to look into the fact that the rights of a client can not be dissolved by the agreement. Meaning the client can sign that the monetary limit of liability is the fee paid but the court may say that the client is not bound to that limitation. It may be state dependent.

[Jerry Peck]

Basically, each and every statement in the contract is, in some way, trying to limit the home inspector's liability, and each and every one is simply a hoop that an attorney needs to jump through.

Once the attorney hits their stride in jumping through the hoops ... look out.

Think of it as running the low hurdles where you get your stride to match the height and spacing of the low hurdles and you can jump each one with little effort. ;)

[Aaron Miller]

Think of it as running the low hurdles where you get your stride to match the height and spacing of the low hurdles and you can jump each one with little effort.

Yes, that is why it is critical that an inspector have his or her agreement drafted by a competent attorney familiar with his or her state laws. Copying someone else's agreement or drafting your own is tantamount to professional suicide. Spend the $500 to get it done right.

[Garry Sorrells]

Linda,
Would love to hear how your attorney address the concept of " against public policy ".

Take a look at Page 263 right column of PDF

Fundamentals of Business Law: Excerpted Cases - Roger LeRoy Miller, Gaylord A. Jentz - Google Books (http://books.google.com/books?id=mgruQIq3wQ4C&pg=PA262&lpg=PA262&dq=limiting+liability+exculpatory+clause+for+home+ inspection+cases&source=bl&ots=UC3eJfCfki&sig=Zo1BQXy_FgUaAzrUdILNSlsYdy8&hl=en&sa=X&ei=9UNoUO3tDoXy0gHFo4GQCw&ved=0CCwQ6AEwAg#v=onepage&q=limiting%20liability%20exculpatory%20clause%20fo r%20home%20inspection%20cases&f=false)

[Lon Henderson]

Basically, each and every statement in the contract is, in some way, trying to limit the home inspector's liability, and each and every one is simply a hoop that an attorney needs to jump through.

Once the attorney hits their stride in jumping through the hoops ... look out.

Think of it as running the low hurdles where you get your stride to match the height and spacing of the low hurdles and you can jump each one with little effort. ;)
I agree. A contract is only as good as a judge says it is. The only purpose of contract is to try to make a hurdle tall enough that a plaintiff decides that it isn't worth trying to get over.
Like Jerry says, once an attorney makes it over the first hurdle with the judge, it usually isn't too tough to just knock the others over. Too often, it seems that home inspectors (and real estate agents, for that matter, too) are presumed guilty by the judge until proven innocent.

[Aaron Miller]

real estate agents . . . are presumed guilty by the judge until proven innocent.

You mean they aren't?:confused: