One week after Shirley and David Finch purchased a home in Parkersburg, West Virginia, they discovered defects in the basement — defects they hadn’t noticed before because the area was blocked from view by the previous owner’s workbench. The couple had hired InspecTech to complete an inspection and report prior to the purchase of the home, so they contacted them for an explanation. The company’s inspector reinspected the home and reported water damage, prior efforts to fix it, water infiltration, and structural issues with the foundation. InspecTech refused to pay for any costs incurred because the agreement they had with the Finches included unconditional release for damages.
The Finches sued the company for negligence and $39,000 to cover the cost of repairs.
InspecTech maintained that the Finches had no right to collect, citing the contract, which stated “The CLIENT (Finches) hereby releases and exempts the COMPANY and its agents and employees of and from all liability and responsibility for the cost of repairing or replacing an unreported defect or deficiency.” It argued the couple freely entered into the contract; the language about unconditional release was unambiguous; and the contract should be enforced citing precedence that “when an express agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no public interest with which the agreement interferes, it generally will be upheld.”
The Finches countered that unconditional release of liability was against public interest because Gary Flanagan, the InspecTech employee who performed the inspection, presented himself as a certified home inspector in West Virginia, yet failed to meet state standards. Contractual release would give them no recourse against negligence and would provide disincentive for experts to adequately perform services. InspecTech said its contracts and services were based on business policy, not public policy, and maintained the right to enter into contracts with any other party, as they did with the Finches.
How Would You Rule?
The Circuit Court of Wood County found the Finches had contractually released InspecTech from all liability and responsibility for costs of repair and granted a summary judgment in favor of InspecTech. The Finches appealed.
The Supreme Court of Appeals of West Virginia reversed the decision, finding there was a public interest because home inspectors are governed by the State of West Virginia and are required to comply with guidelines regulating the home inspection industry for the protection of the consumers. The Finches are entitled to receive the protections afforded by such regulations and should not be expected to relinquish such safeguards as a condition to receive home inspection services.
—Finch v. InspecTech, 2012
This reader favorite originally appeared in the November/December 2012 issue of the Post.
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