ATLANTA (Legal Newsline) - A home inspection company with basically a one-year warranty on its work can't be sued after a retaining wall collapsed and killed a client after that timeframe.
The Georgia Supreme Court, noted in recent years for its sympathies toward personal injury plaintiffs, did the opposite in a June 11 ruling involving BPG Inspection.
Though a trial court ruled the one-year window invalid, both state appellate courts have now decided Jessique Omstead can't sue BPG over the death of her husband, Albert. She argued that even if a one-year statute of limitations applies to tort claims in general, the clause in BPG's contract was not valid because of her claims of gross negligence and fraud.
"Omstead offers no case where we have rejected a contractual provision like the one-year limitation in this case on the grounds that the limitation period expired before a party's claims accrued or on the grounds that the limitation period deprived a party of the opportunity to bring a claim," Justice Carla Wong McMillian wrote.
"And given our longstanding caution in interfering with the freedom of parties to contract, our silence on 'contractual repose' periods is not enough for us to declare them void or unenforceable."
Albert engaged BPG to inspect an Atlanta property he and his wife wished to purchase in early 2020. He signed an agreement that had several limitations on liability, including: "YOU MAY NOT FILE A LEGAL ACTION, WHETHER SOUNDING IN TORT (EVEN IF DUE TO OUR NEGLIGENCE OR OTHER FAULT), CONTRACT, ARBITRATION OR OTHERWISE, AGAINST US OR OUR EMPLOYEES MORE THAN ONE YEAR AFTER THE INSPECTION, EVEN IF YOU DO NOT DISCOVER A DEFECT UNTIL AFTER THAT."
There was a retaining wall running the length of the driveway, which was inspected as "appears to be functioning as intended." The Omsteads bought the property but posted photos on Instagram of the retaining wall that said it had cracks through which water flowed during rainfall.
More than a year later, Albert was placing a plastic tar and a piece of particle board on top of the retaining wall to divert water from the garage. But the wall collapsed on him, and he died.
Albert was 38 years old and was an entertainer. A wrongful death lawsuit followed in September 2021, more than a year after BPG's inspection.
Jessique said the clause didn't include claims for bodily injury, only contractual disputes, plus Georgia law prohibits statutes of repose in contracts.
"Unless the contractual provision is otherwise in contravention of public policy... Omstead has offered no reason not to enforce the one-year limitation here - a period the parties have mutually agreed to by contract - even though the one-year period expired before Omstead's wrongful death claim accrued," McMillian wrote.