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  1. #1
    Philippe Heller's Avatar
    Philippe Heller Guest

    Default Access Inspection Liability

    For those inspectors who want to perform accessibility inspections:

    This is a very litigious topic. In several states, including California, New York, Florida, Oregon, Texas and a few others, there is an epidemic of lawsuits filed over violations of the ADA or even more restrictive state and local accessibility laws. If you perform accessibility inspections you are taking on a huge liability.

    BE SURE YOUR INSURANCE COVERS YOU! Most HI policies WILL NOT cover you for ADA/aaccessibility inspections. They consider it a code inspection which they do not cover. This includes Lexington, AIG, Allen Insurance, etc.

    If you perform an inspection and the business subsequently gets sued, you could be in a heap of trouble.

    CYA

    Philippe Heller
    The San Diego Real Estate Inspection Co.
    Home Inspector San Diego - The San Diego Real Estate Inspection Company

    Similar Threads:
    Inspection Referral

  2. #2
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    Default Re: Access Inspection Liability

    Philippe, not sure what you mean by an accessibility inspection. What is that and what does it entail?


  3. #3
    Philippe Heller's Avatar
    Philippe Heller Guest

    Default Re: Access Inspection Liability

    Hi Nick,

    Accessibility inspections check for wheelchair access, and compliance with the ADA or Americans with Disabilities Act. (i.e. ramps, parking spaces, signage, handrails, bathrooms, etc.)

    A business must meet the exacting standards outlined in the ADA. The tolerances are much more strict than most HI's are used to. For example, a business can be sued if a bathroom mirror is 1/4 inch too high from the ground.

    Recently there has been a lot of talk on the message boards and from software vendors regarding Accessibility inspections. As with any new service, there are liabilities.


  4. #4
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    Default Re: Access Inspection Liability

    Gotcha. I've never done one, never been asked to do one, and wouldn't do one if asked as I know nothing about what is required.


  5. #5
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Access Inspection Liability

    Years ago as part of my companies service in commercial work we use to install all those wonderful goods all the way down to handicapped bathroom toilets and sinks and everything inside the building that pertained to accesibility.

    I for one unless I took a serious refresher course would not do those inspections now. Even the drawings and dimensions would be wrong on plans all the time and we were responcible for catching those mistakes (because we were suppose to be the experts).

    We never had any come backs or complaints or suites but I certainly thought about it all the time.

    A lot of the items in this installations were never caught by folks with athority for checking them. They were usually caught by handicapped folks and then they complained. We were constanly called in to make corrections in other buildings we did not do. Always caught by the disabled.

    Most were extremely insignificant complaints as you mentioned about items a half inch or so out of place. Turn around spaces were one of the biggest complaints. i would go in and measure and have to measure twice to figure which exact spot they were complaining about. Usually not much of anything at all. The big items whether it be placement or things left out all the time were usually caught by others before the building opened.

    The wheel chair folks could tell if a ramp had just slightly to much of a pitch. I am talking slightly. Rip up the concrete and do it over. I am talking about a three foot long ramp with less than 3/8 of an inch total hight difference per foot. If you go into a blind mans home and move an item a half inch almost anywhere they can tell you about it.


  6. #6
    Philippe Heller's Avatar
    Philippe Heller Guest

    Default Re: Access Inspection Liability

    Businesses have to comply. It is the law. Problem is, as Ted pointed out, the building inspectors have not done their job to point out these mistakes.

    There are many people in California who seek out violations. Our State law allows anyone with a disability to sue over these violations, however slight. There is a financial incentive to find violations and threaten to sue. We have people in CA who have sued a dozen businesses on the same day, claiming the same problems, and the same injuries at each place.

    Then they ask the business to settle with them - usually for thousands of dollars.

    This is where the liability comes in. If an HI inspects a business, and doesn't get it right, they will hear about it.


  7. #7
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    Default Re: Access Inspection Liability

    The ADA is great legislation overall. Like anything, it's unfortunate when people just try to exploit it for financial gain.

    This reminds me of the MADD and the drunk driving laws. Some of these organizations pretty much have a blank check to write whatever laws they want.

    When it comes election time do you want to be the guy that fought tougher drunk driving laws or the judge that ruled against a guy in a wheelchair?

    I'm not saying they're not fundementally good things but any cause that has no limits is bound to spin a bit out of control.


  8. #8
    Daniel Leung's Avatar
    Daniel Leung Guest

    Default Re: Access Inspection Liability

    When we perform a commercial inspection in accordance with the American Society for Testing Materials (ASTM) Standard E2018-01 - Standard Guide for Property Condition Assessments (PCA): Baseline Property Condition Process, then the consideration of The Americans with Disabilities Act (ADA) is excluded.

    From the clauses of ASTM E2018-01:
    8.5.3 Additional Issues Following are several non-scope considerations that users may want to assess in connection with commercial real estate. No implication is intended as to the relative importance of inquiry into such non-scope considerations, and this list of non-scope considerations is not intended to be all-inclusive:
    8.5.3.1 Seismic Considerations,
    8.5.3.2 Design Consideration for Natural Disasters (Hurricanes, Tornadoes, High Winds, Floods, Snow, etc.),
    8.5.3.3 Insect/Rodent Infestation,
    8.5.3.4 Environmental Considerations,
    8.5.3.5 ADA Requirements, *
    8.5.3.6 FFHA Requirements, # (note Federal Fair Housing Act)
    8.5.3.7 Indoor Air Quality, and
    8.5.3.8 Property Security Systems.

    However, the small print footnote said:
    * It is recognized that most PCAs include some level of assessment of ADA compliance. This guide recognizes that there are numerous acceptable levels of ADA assessment that can be conducted as part of PCA. The level of assessment is mutually agreed upon by the user and the consultant.
    # This guide recognizes that some PCAs for residential properties include some level of assessment of FFHA compliance. The level of assessment is mutually agreed upon by the user and the consultant.

    My opinion is, to have protection from legal suit, it is better to exclude all of the above. I don't mind to attach an even longer excluded-list in the contract.


  9. #9
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    Default Re: Access Inspection Liability

    A few years ago I helped a friend who was developing a site deal with ADA compliance issues.
    Unless you are getting paid by the hour, stay far far away from it.
    Just my pennies worth.

    www.aic-chicago.com
    773/844-4AIC
    "The Code is not a ceiling to reach but a floor to work up from"

  10. #10
    Jeff Remas's Avatar
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    Default Re: Access Inspection Liability

    We currently use ICC/ANSI A117.12003 for accessibility requirements.

    The PA Department of L&I has been auditing each municipalities code enforcement program, especially accessibility and has been extremely tough with their inspections of AHJ's. Signage seems to be a big issue along with accessible parking spaces.

    This has become a major issue and headache when accessibility is applied. Changes of occupancy in existing buildings starts the process and we can mandate that up to 20% of the renovation money be spent on accessibility.


  11. #11
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Access Inspection Liability

    Quote Originally Posted by Jeff Remas View Post
    We currently use ICC/ANSI A117.1–2003 for accessibility requirements.

    The PA Department of L&I has been auditing each municipalities code enforcement program, especially accessibility and has been extremely tough with their inspections of AHJ's. Signage seems to be a big issue along with accessible parking spaces.

    This has become a major issue and headache when accessibility is applied. Changes of occupancy in existing buildings starts the process and we can mandate that up to 20% of the renovation money be spent on accessibility.
    Is 20% of the public handicapped??? That kind of allowance sounds a little on the excess side, doesn't it.

    A little edit here...... 90% of the "handicapped folks" pull into the spot designated for them and then runnn into the store. And that is not an exageration.


  12. #12
    Jeff Remas's Avatar
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    Default Re: Access Inspection Liability

    Quote Originally Posted by Ted Menelly View Post
    Is 20% of the public handicapped??? That kind of allowance sounds a little on the excess side, doesn't it.

    A little edit here...... 90% of the "handicapped folks" pull into the spot designated for them and then runnn into the store. And that is not an exageration.
    It is actually pretty forgiving and caps the amount we can force someone to spend on accessibility where full compliance would be excessive. If someone is changing occupancy of a commercial building and doing $20,000. worth of work and they did not plan on addressing accessibility then we can mandate that up to $4,000. of that money go toward accessibility which is not much. It may actually cost them $10,000 to make a building fully accessible so instead of having them spend that much money, we hold it to 20% to get the important things done.

    The 20% has nothing to do with the percentage of the public being handicapped.


  13. #13
    Philippe Heller's Avatar
    Philippe Heller Guest

    Default Re: Access Inspection Liability

    Ted, the Gov't estimates at least 50,000,000 Americans have a disability. And with the new revision of the ADA, even more people are now considered to have a disability.

    Jeff, the cost of upgrades is not really the issue. In those states where "drive-by" lawsuits are a problem, the plaintiffs just need to find a couple of things that are not in compliance, and they threaten a lawsuit. Then they offer to settle with the business owners who usually pay because settling is cheaper than going to court.

    The point of my post was that if any inspectors are going to venture down this path, they need to have the proper coverage and most HI policies do not cover ADA surveys.


  14. #14
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Access Inspection Liability

    Quote Originally Posted by Jeff Remas View Post
    It is actually pretty forgiving and caps the amount we can force someone to spend on accessibility where full compliance would be excessive. If someone is changing occupancy of a commercial building and doing $20,000. worth of work and they did not plan on addressing accessibility then we can mandate that up to $4,000. of that money go toward accessibility which is not much. It may actually cost them $10,000 to make a building fully accessible so instead of having them spend that much money, we hold it to 20% to get the important things done.

    The 20% has nothing to do with the percentage of the public being handicapped.
    So

    In your scenario the building may not be fully compliant but its ok?????

    I know the amount does not have to do with perentage of handicapped public. Just made a dumb statement.

    So if they do there 20% no one can sue them for not being accessible but if they do sue them they get to sue you instead ??????.


  15. #15
    Philippe Heller's Avatar
    Philippe Heller Guest

    Default Re: Access Inspection Liability

    Remember, I am looking at this through the paranoid eyes of a California inspector. People sue here for a lot less.

    And yes, inspectors get sued all the time for "missing" something. You must be familiar with the third party lawsuits we all face. That is when we do an inspection for someone. Then they don't buy the house, but the next buyer gets a hold of the report six months later. Something goes wrong and they sue the inspector - even though he had no contractual relationship with the new buyers.

    ADA inspections are very specific. And if you were to miss something and the owner of the properly got sued over it, don't you think he'd be pissed at the inspector? If that happens you'd better have the proper coverage.


  16. #16
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    Default Re: Access Inspection Liability

    Quote Originally Posted by Ted Menelly View Post
    So

    In your scenario the building may not be fully compliant but its ok?????
    Yes ... with "OK" being key.

    The reason is that upgrading to meet the ADA is exempted 'when it causes an undue burden' on the owners. The 20% is a common line drawn in the sand which represents the threshold for 'undue burden'.

    So if they do there 20% no one can sue them for not being accessible but if they do sue them they get to sue you instead ??????.
    Nope, that does not mean no one can sue them and it does not mean that they can sue the AHJ.

    Remember, code is minimum, and the 20% represents a level of undue burden, but not exemption. The owner still has the option to make it fully compliant. If the owner does not choose that option, which is above and beyond the undue burden, the judge will still see it as non-compliance with the ADA's requirements.

    Think of it this way:

    The plan review person tells you, the builder, that, you know, you really should consider making those circuits #12 AWG to avoid voltage drop, but, it is not something I can force you to do.

    Now consider that there are voltage drop problems all over because the builder (you in my example) steadfastly insisted on using the code allowed #14 AWG for those circuits.

    The fault does not fall onto the plan reviewer who could not force you to use #12 AWG, the fault falls onto you for not using #12 AWG - after all, *IT WAS* *YOUR* decision to use #14 AWG.

    Same thing for the undue burden line in the sand, beyond that, you the owner makes the decision and takes the risk.

    Jerry Peck, Construction / Litigation Consultant
    Construction Litigation Consultants, LLC ( www.ConstructionLitigationConsultants.com )
    www.AskCodeMan.com

  17. #17
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Access Inspection Liability

    Quote Originally Posted by Philippe Heller View Post
    Remember, I am looking at this through the paranoid eyes of a California inspector. People sue here for a lot less.

    And yes, inspectors get sued all the time for "missing" something. You must be familiar with the third party lawsuits we all face. That is when we do an inspection for someone. Then they don't buy the house, but the next buyer gets a hold of the report six months later. Something goes wrong and they sue the inspector - even though he had no contractual relationship with the new buyers.

    ADA inspections are very specific. And if you were to miss something and the owner of the properly got sued over it, don't you think he'd be pissed at the inspector? If that happens you'd better have the proper coverage.
    Sorry

    It says quite clearly that you should not rely on any other report previously done on the property and should have your own inspection.

    If I do a sellers inspection. TREC state contract. Don't rely on any other report. You should have your own inspection done. Do not rely on any other inspection performed on the property.

    Never had a lawsuit for 35 years of building, remodeling or inspecting.

    As far as the red highlight.

    Not the planet I live on. You must live in California or something.

    I have never worked under the assumption that I am going to get sued. I do not make my reports filled with disclaimers like I am trying to hide behind something and be deceitful.

    If I have any doubt or inclination what so ever of a clients decency or moral standing even if it is just an intuition, a tone in there voice. To many "hold you responsible" tones, anything at all, I will not do an inspection for them. I they do not pick up and verbally voice there knowledge that I am there to reduce their risk and it is impossible to remove all those risk. This is all in general conversation. Not an inquisition. If I feel any distrust for my clients I will not be their inspector. When I built, remodeled, commercial or residential, there were countless people I would not do jobs for. If they did not accept the understanding that I do not work for them, I work for me I would not do the job for them. All in general conversation, not an inquisition.

    I have been reading people correctly all my life. Why, because my livelihood depended on it.

    Am I the best inspector??? Most won't tell you this but I will. Absolutely not. Was I the best builder??? Absolutely not. Did I just luck out in some cases??? Absolutely. Have I ever screwed up??? Geeeees. You know it.


  18. #18
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    Default Re: Access Inspection Liability

    Quote Originally Posted by Philippe Heller View Post
    Remember, I am looking at this through the paranoid eyes of a California inspector. People sue here for a lot less.

    And yes, inspectors get sued all the time for "missing" something. You must be familiar with the third party lawsuits we all face. That is when we do an inspection for someone. Then they don't buy the house, but the next buyer gets a hold of the report six months later. Something goes wrong and they sue the inspector - even though he had no contractual relationship with the new buyers.
    I hear of this mentioned sometimes on this board but would like to know of an actual case where an inspector was sued by a third party and won the suit. I'd be interested in hearing the facts.

    On my agreement and on my inspections I have the following statement and not once have I had someone try and hold me liable. Put the facts on your paperwork to these folks.

    Rick


    Important Notice to third parties or other purchasers: Receipt of this report by any purchasers of this property other than the party identified on this Inspection Report is not authorized by the Inspector of the company that provided this report. The Inspector strongly advises against any reliance of this report. We recommend that you retain a Qualified Professional Inspector to provide you with your own inspection and report on this property.
    In Layman terms, you did not pay for this inspection report nor do you have a signed Home Inspection agreement with our company. Don't even think of calling us and complaining when you were to cheap to hire your own Home Inspector or your Realtor suggested you save the money on an inspection and rely on this report.
    We will and can afford to see you in court if the need arises.


  19. #19
    Ron Bibler's Avatar
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    Default Re: Access Inspection Liability

    Quote Originally Posted by Rick Hurst View Post
    I hear of this mentioned sometimes on this board but would like to know of an actual case where an inspector was sued by a third party and won the suit. I'd be interested in hearing the facts.

    On my agreement and on my inspections I have the following statement and not once have I had someone try and hold me liable. Put the facts on your paperwork to these folks.

    Rick


    Important Notice to third parties or other purchasers: Receipt of this report by any purchasers of this property other than the party identified on this Inspection Report is not authorized by the Inspector of the company that provided this report. The Inspector strongly advises against any reliance of this report. We recommend that you retain a Qualified Professional Inspector to provide you with your own inspection and report on this property.
    In Layman terms, you did not pay for this inspection report nor do you have a signed Home Inspection agreement with our company. Don't even think of calling us and complaining when you were to cheap to hire your own Home Inspector or your Realtor suggested you save the money on an inspection and rely on this report.
    We will and can afford to see you in court if the need arises.
    This is going on a lot in my area. I've inspected homes and the buyers then did not like the info and so they back out. then the listing agents past around the reports like candy to any one that comes along. I've even had one agent call me and ask if I would put a current date on my report and sent it to her What are you thinking lady.

    But I have never got wind of any problems from this. that an Inspector was sued over a 3rd party report. Most of the Inspectors in this area are very sharp inspectors.

    Best

    Ron


  20. #20
    Philippe Heller's Avatar
    Philippe Heller Guest

    Default Re: Access Inspection Liability

    Here is a current example from the planet of Texas about an ADA lawsuit.

    Big Spring Herald - ADA Lawsuit Forces Auditorium Closure

    It happens all over the country. My original point of this thread was that ADA inspectors are needed. Lots of associations and software comapnies are offering ADA evaluation forms. I just want to give my fellow inspectors a heads up that if they choose to enter this field, they need to be aware that their existing coverange will not include these ADA inspections.


  21. #21
    Michael Allen's Avatar
    Michael Allen Guest

    Default Re: Access Inspection Liability

    Hello all: I am new to these boards, running across this thread during a Google search. I couldn't resist posting because I am an accessibility specialist for an ADA consulting firm in Nashville. I inspect hospitals all over the eastern half of the country. Our clients are nationwide corporations and our typical projects are 20-60M. I trained in Texas in 2003 and I was previously in the commercial/industrial construction business for 35 years starting as a carpenter's helper in 1969.

    Accessibility is a complicated field. That is why we get hired to review plans for projects in the design phase and also to go to jobsites for progress reports or to existing facilities for due diligence reports, etc. That said, there's no reason not to do accessibility inspections provided you are willing to make the effort to learn the codes, research the local and state accessibility requirements and choose the most stringent rule whenever there are code conflicts.

    Is there any liability for making casual checklist style inspections? The short answer is yes. The Department of Justice is not really interested in small inspections or small inspectors either but a client who buys a building (intending to remodel to suit) will be extremely upset to learn from his architect that remediation costs for ADA issues will be an extra $250,000. This is the situation where you will get shot at by hungry lawyers.

    If you are a small commercial inspector you should start studying the Federal ADAAG and your state accessibility code. Call your local county and city inspection departments and find out which code they mandate and get copies. Usually it will be ANSI A117.1. Then you should read every single paragraph carefully and start taking notes. You will soon begin to see the logic of the system but the complexity will numb your brain until you get used to it.

    Best of luck, Michael Allen


  22. #22
    Michael Allen's Avatar
    Michael Allen Guest

    Default Re: Access Inspection Liability

    Quote Originally Posted by Rick Hurst View Post
    I hear of this mentioned sometimes on this board but would like to know of an actual case where an inspector was sued by a third party and won the suit. I'd be interested in hearing the facts.

    On my agreement and on my inspections I have the following statement and not once have I had someone try and hold me liable. Put the facts on your paperwork to these folks.

    Rick


    Important Notice to third parties or other purchasers: Receipt of this report by any purchasers of this property other than the party identified on this Inspection Report is not authorized by the Inspector of the company that provided this report. The Inspector strongly advises against any reliance of this report. We recommend that you retain a Qualified Professional Inspector to provide you with your own inspection and report on this property.
    In Layman terms, you did not pay for this inspection report nor do you have a signed Home Inspection agreement with our company. Don't even think of calling us and complaining when you were to cheap to hire your own Home Inspector or your Realtor suggested you save the money on an inspection and rely on this report.
    We will and can afford to see you in court if the need arises.
    Just to make a small point here - there is no such thing as "winning a lawsuit". If you get sued you are out ten grand no matter what. The lawyers on both sides will make sure they grind at least that out of everybody. Even the "winner" has to pay the lawyer in most ADA cases since ADA law precludes awards. Arbitration no exception. This is in the federal statute.

    Another thing, a disclaimer clause like this can be torn to shreds by any competent lawyer. "Professional" is not just a marketing term. Get some class.


  23. #23
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Access Inspection Liability

    Quote Originally Posted by Philippe Heller View Post
    Here is a current example from the planet of Texas about an ADA lawsuit.

    Big Spring Herald - ADA Lawsuit Forces Auditorium Closure

    It happens all over the country. My original point of this thread was that ADA inspectors are needed. Lots of associations and software comapnies are offering ADA evaluation forms. I just want to give my fellow inspectors a heads up that if they choose to enter this field, they need to be aware that their existing coverange will not include these ADA inspections.
    I think we had gotten back to home inspections and not ADA compliant commercial

    I had a lady yell at me the other day because my phone rang as I was crossing an empty handicapped spot. I did not notice someone waiting across the drive to pull into this spot. When I looked up I just waived as if to say sorry and I moved to the side. The lady whips into the spot and jumps out of her car yelling at me the whole time for blocking her access. She literally about ran into the store. The entire scene was so comical that I just stood there staring ay her yelling at me. I am sure you read JUMPING out of her car an RUNNING into the store.

    With out any exaggeration and I might be over exaggerating the percentage, 90 plus percent of folks with handi capped stickers/tags on their cars have absolutely no visible deformation, limping, struggling to walk, any outwardly visible pain or visible reason why they need a tag to park in those spots.

    The folks I do see with visible concerns cannot even move out of their own way and should not even be behind a wheel.

    I am not picking on folks because I have had a couple back operations and before that took place I literally crawled into my house a few times. The pain was so bad this man had a tear in his eye half the time. At times now I can turn my head hard and sneeze and blow my back out and down on the knees I go.

    Just my night time rant here


  24. #24
    Ted Menelly's Avatar
    Ted Menelly Guest

    Default Re: Access Inspection Liability

    Quote Originally Posted by Michael Allen View Post
    Just to make a small point here - there is no such thing as "winning a lawsuit". If you get sued you are out ten grand no matter what. The lawyers on both sides will make sure they grind at least that out of everybody. Even the "winner" has to pay the lawyer in most ADA cases since ADA law precludes awards. Arbitration no exception. This is in the federal statute.

    Another thing, a disclaimer clause like this can be torn to shreds by any competent lawyer. "Professional" is not just a marketing term. Get some class.
    Mike

    Get some clas????????????????????????

    What happened Mike. You get sued in the past. Professional in Texas is used because there are three levels in home inspector licensing. Professional being the stand alone inspector that does not have to work under someone else.

    He put his opinion out and you tell him to get some class. Telling someone to get some class is not an opinion but a statement from an ass.

    Just my opinion. As always. You know what opinions are like, right Mike. Yep, everyone has one also.

    Just a little edit here

    Important Notice to third parties or other purchasers: Receipt of this report by any purchasers of this property other than the party identified on this Inspection Report is not authorized by the Inspector of the company that provided this report. The Inspector strongly advises against any reliance of this report. We recommend that you retain a Qualified Professional Inspector to provide you with your own inspection and report on this property.

    That statement happens to be part of the inspection report legal end from the Texas Real Estate Commissions formatted inspection report that all Texas home inspectors must use. Kinda hard to fight that.


    Last edited by Ted Menelly; 03-12-2009 at 08:22 PM.

  25. #25
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    Default Re: Access Inspection Liability

    Quote Originally Posted by Michael Allen View Post
    Just to make a small point here - there is no such thing as "winning a lawsuit". If you get sued you are out ten grand no matter what. The lawyers on both sides will make sure they grind at least that out of everybody. Even the "winner" has to pay the lawyer in most ADA cases since ADA law precludes awards. Arbitration no exception. This is in the federal statute.

    Another thing, a disclaimer clause like this can be torn to shreds by any competent lawyer. "Professional" is not just a marketing term. Get some class.
    Hi Michael, welcome to the board....

    I'm not trying to disect what you wrote too closely but it seems in your first post you told us the liability ins't bad and in your second post you explained how horrible the lawsuits associated with ADA inspections are.... ????


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