Inspectors should always take seriously a written complaint from a client. The letter may come directly from your client or it may come from your client’s lawyer.
Read the Letter Carefully
First, read the letter very carefully and then pull the client’s report. If you are part of a multi-inspector firm, you should talk to the inspector after you’ve read the letter and pulled the report. Addressing a letter of complaint requires the same thought process as addressing a call of complaint: You should find out whether the report addresses the problem and if the problem is within the scope of an inspection.
Call the Client
You can proceed in a number of ways from this point, but we have found that the best approach is to phone the client directly, even if the letter came from a lawyer. Here are some reasons why we like this approach:
- Calling has no downside. If the client does not want to speak with you and wants the lawyer to handle it, they can just say so.
- There is a chance that you can re-establish your relationship with the client and meet them face to face.
- It’s difficult to get an accurate gauge of a person’s emotion by reading a letter. The client may be very upset or the client may be only a little bit upset, but likes to write letters.
- The client may have been very upset when writing the letter or when passing along information about the issue to the lawyer; however, the client may have cooled off during the time it took for the letter to get to you. The client may be willing to talk to you about resolving the problem.
- It is harder to be unreasonable when you are speaking to someone than it is if you are writing to them. It’s harder still to be unreasonable during a face-to-face meeting.
When you call, follow the procedure that we discussed for handling complaint calls. Gather information and then set up a revisit, if appropriate.
Calling Can Reduce the “Mean Scale”
Remember that the closer you are to someone, the harder it is for them to be mean to you. This is our “mean scale”:
- It’s easiest to be mean in writing.
- It’s harder to be mean on the phone.
- It’s hardest to be mean in person.
REPLYING TO WRITTEN COMPLAINTS IN WRITING
If your client does not want to speak with you, or if, for any other reason, you choose to respond to a complaint in writing, here are some tips:
- Keep your letter professional.
- Choose your words very carefully. Assume that a lawyer will read your letter and that it will be used as evidence in a court case.
- Do not be defensive or aggressive; it will not help your cause, even if it makes you feel better. Even if your client behaves badly, you should behave as a consummate professional every step of the way.
- Avoid sarcasm, even though we realize how tempting it may be to use it, especially if the client has used sarcasm in the letter.
- If the problem is out of scope or if it is documented in the report, follow the template that we suggest for addressing complaint calls. If the problem is not covered in the report and is not out of scope, set up a revisit to the property.
- Do not reply via email. Emails circulate too easily and can be too informal. If someone emails you a complaint, you should follow up by having a phone conversation with the person, not by replying to the email.
- Consider using the “For Settlement Purposes Only” statement
In the United States, it is customary to include a header on a letter that states “FOR SETTLEMENT PURPOSES ONLY.” The rules of evidence exclude any evidence that relates to settlement discussions between the parties, so a header like this on a letter is sufficient to exclude the contents of the letter from any legal proceedings that may ensue as a result of the dispute.
For example, let’s say you get a letter from a client who claims that the roof leaked after he and his family moved in. Instead of calling you, he got the problem fixed for $5,000. But the client still believes that you are responsible and he sends you a letter to request that you cover the cost. You see that there’s no point in doing a revisit because the problem already has been fixed. If you decide that it’s better for you to offer to defray some of the client’s costs as a gesture of goodwill, you could write a letter to the client that says something like, “Although I did not have the opportunity to assess the problem area to see if it was something I missed, I understand how upsetting it can be to have a leaky roof when you buy a new house.” Then you might offer the client $1,000 toward defraying those costs, but because you don’t want that offer to look like you feel responsible, you place the “for settlement purposes only” phrase at the top of the letter, which “covers” you. It’s like saying, “here’s some compensation,” but it’s not an admission of guilt.
You also can use the “for settlement purposes only” clause to address items that clearly are not your fault. For instance, if you get a letter of complaint about a central vacuum system that broke on the day that the owners bought the house, you could empathize with the client in your letter, but you could reiterate that central vacuums are not within the scope of home inspections. Then you can refer the client to the agreement regarding the limitations of the inspection that the client signed. Even in a situation like this, it’s still a good idea to put the appropriate phrase at the top of this letter.
Please note that we strongly recommend that you consult with your legal advisor on the proper wording to use.
REPLYING TO A WRITTEN COMPLAINT FROM A LAWYER
Consider the options before calling the insurer. If a lawyer sends you a letter on behalf of your client, you could turn the issue over to your insurance company or to your lawyer immediately. Our feeling is that this tends to escalate things and takes the control of the situation out of your hands. This may be the right thing to do if you are not comfortable dealing with complaints, but it can be expensive. You will need to make a business decision about how to handle this type of letter.
Many errors and omissions insurance policies require that you inform your insurance company whenever you receive a complaint that might lead to a claim. You should check your policy for specific guidelines.
At Carson Dunlop, we call the client directly, regardless of whether we receive the letter from the client or from the client’s lawyer. We have found that calling the client improves our chance of defusing the situation.
Respond to lawyers in writing. If you choose to respond to the lawyer rather than the client, do it in writing, not over the phone. If you live in Canada, use the “without prejudice” clause; if you live in the United States, use “for settlement purposes only.” You can be sure that the lawyer has heard only one side of the story and that the client will have described the situation in the most dramatic fashion possible to support his or her argument. The lawyer is clearly at a disadvantage.
You should assume that the lawyer has not seen the report or the inspection agreement. You must respect client confidentiality, which means that you would discuss the contents of the report only with the lawyer, or if you’ve received the client’s permission to do so, you can attach a copy of the report and the inspection agreement. You may point out the agreement, the limitations, the limitation of liability and, if applicable, any arbitration clauses that your client may have signed.
We have found that there is a higher risk when we communicate directly with the lawyer. A lawyer may feel that it doesn’t matter whether the client has a logical and rightful claim because, assuming that you have insurance, the insurance company may pay out anyway. You should be aware that the client or the lawyer may spend some time and effort finding out if you have errors and omissions insurance. This is a good reason why it is not necessarily a good idea to advertise that you have errors and omissions insurance.
We would like to reiterate the first statement of this article: Inspectors should always take seriously a written complaint from a client. And we remind you to respond with care and with professionalism.