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Illinois

Home Inspection Contracts

Zerjal v Daech & Bauer Const, Inc, 405 Ill App 3d 907, 939 NE2d 1067, 345 Ill Dec 887 (5th D, 2010).

Facts:The Zerjals hired Theisman to inspect a prospective property to purchase in Fairview Heights. Jackie Zerjal did not sign the contract. The inspection took place on May 13, 2006, and the plaintiffs purchased the property from Daech & Bauer Construction, Inc., on May 31, 2006. On June 16, 2006, the plaintiffs filed a three-count complaint against Daech & Bauer Construction, Inc., and Theisman. Only count III, which was a breach of contract claim against Theisman, was at issue in the instant case. The Zerjals alleged that Theisman failed to uncover numerous defects in the home that a reasonably careful inspector should have found. Theisman moved to dismiss on three grounds: (1) the limit of liability provision in the contract that set Theisman's liability at the inspection cost of $175 was valid and enforceable under Illinois law; (2) the suit was barred because it was not filed within the two-year period set forth in the contract; and (3) Jackie Zerjal's claim was barred because she was not a party to the contract. Without specifying the grounds for its decision, the circuit court granted Theisman's motion to dismiss with prejudice on January 13, 2010. The Zerjals filed notice of appeal on January 25, 2010.

Holding:Affirmed. The Zerjals first argued that public policy considerations regarding protection of homeowners should lead the court to find that home inspectors should not be allowed to limit their liability when they fail to provide contracted for services. Under Illinois law exculpatory clauses are enforceable unless enforcement would be against settled public policy of the state and something in the social relationship of the parties militates against enforcement. The appellate court found that there was no settled public policy against exculpatory clauses in Illinois; it found that the Zerjals were not in a position of disparate bargaining power because they could have bargained for different terms or obtained another inspection, and it found the provisions were not unconscionable when contained in pre-printed contract. The appellate court declined to find the limitation of liability clause to be contrary to the public policy of Illinois.

The Zerjals' second contention was that the two-year period of limitations is invalid and should not be enforced. The appellate court found the two year limitations period to be valid and enforceable. The court found no merit to the contention that the provision was concealed in the contract, and it found no facts to support the argument that the limitation period was unreasonable.

The Zerjals' last contention that Jackie Zerjal was a proper party to the suit was not addressed because it was not supported with a coherent argument or any citation to authority. Accordingly, the appellate court affirmed the dismissal of count II of the complaint.

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