An Engineer’s Professional Liability Case in New Hampshire

By Michael Coghlan

Design Professionals Do Have ChoicesIn a recent case against an Engineer performing residential home inspections in the State of New Hampshire, the court dismissed the case and awarded attorney’s fees against the Plaintiff Homeowner.

The case was filed by a Homeowner who obtained a home inspection from Engineer prior to purchasing a home in northern New Hampshire. Homeowner and Engineer contracted for Engineer to provide a limited visual inspection of the premises. Specifically excluded from the scope of the inspection was any requirement that the Engineer open any walls, disassemble or inspect any fixtures, move any furnishings or conduct any destructive testing. The Contract for Services also provided that in the event of litigation where the Engineer prevails, the Homeowner would have to pay the Engineer’s costs, including reasonable attorney’s fees.

The inspection was conducted in July of 2010 and the Engineer’s inspection report noted that based on the scope of the inspection, the home and its various components and appliances appeared to be in relatively good working condition. The report noted some areas where minor repair or maintenance was recommended, but found no major deficiencies in the home and mentioned no evidence of any rodent infestation.

The Homeowner purchased the home in August of 2010 and occupied the premises in September of 2010. Shortly after moving in, the Homeowner contended that several deficiencies were discovered in the home. Most importantly, the Homeowner contended that the home suffered from a major rodent infestation, which resulted in significant problems with the electrical system. In addition, the Homeowner claims that the house was very poorly insulated. During the following two and a half years, the Homeowner embarked on a renovation process in which every wall of the home was opened, all wiring was replaced, insulation was upgraded, every window of the home was replaced, one of the house’s two chimneys was replaced (the other was removed entirely) and plans were made to completely replace the roof. The price of all this work came to approximately $217,000.00. The Homeowner claimed that the Engineer was responsible for these costs and alleged that the issues discovered in the home should have been uncovered during the home inspection.

Filing suit against the Engineer and the Sellers of the home in Superior Court, the Homeowner asserted claims against the Engineer for breach of contract, negligence and violation of New Hampshire’s Consumer Protection Act. After some discovery, including a lengthy deposition of the Homeowner, a Motion for Summary Judgment was filed arguing that the Homeowner could not show that the home’s alleged issues would have been evident during the inspection, that discovery of these issues (if they did exist at the time of the inspection) would have required testing and examination beyond the scope of the inspection, that the Engineer satisfied the terms of the Agreement for Services in performing the inspection and that the Homeowner had failed to disclose an expert witness with any proven expertise in home inspection who could opine as to the Engineer’s standard of care in conducting the inspection. The Summary Judgment Motion also requested an award of attorney’s fees according to the Agreement for Services.

The Court entered judgment in favor of the Engineer on each count of the complaint, finding that the Homeowner had introduced no evidence establishing that the alleged defects would have been evident to the Engineer conducting the contracted limited visual inspection. The court also awarded the Engineer his attorney’s fees incurred in defending the lawsuit.