March 27, 2013 South Carolina Supreme Court published opinions

Gladden v Palmetto Home Inspection Services, LLC

Palmetto inspected a home that Gladden bought. The contract limited liability to the fee paid for the inspection. After defects were discovered, Palmetto returned the fee. Gladden sued for damages and the trial court granted summary judgment to Palmetto. The Court, 3-2, affirmed. It held the liability limit did not violate public policy as the legislature does nto require home inspectors to carry insurance and has provided a cause of action against sellers who fail to disclose defects. Nor was the limitation unconscionable as reasonable and honest people would chose to accept the term, the parties were relatively equal in bargaining power and sophistication and Gladden specifically chose to contract with Palmetto instead of a more expensive, but, harder, inspector. The dissent argued that the limitation was unconscionable as the contract was not presented until after the inspection, Gladden’s work in the real estate field did nto make her something other than a regular consumer, the limitation creates no incentive for the inspector to diligently and correctly inspect the premises and the requirement of mandatory arbitration also contained in the contract made it likely that potential plaintiff’s would receive nothing as the filing fee would be greater than the limited damages available. As to public policy, the dissent argued that professional liability waivers are disfavored, inspections are necessary in a home purchase and the licensing requirements for home inspectors negate any inference that inspectors can insulate themselves from liability for negligence.

Berry v South Carolina Department of Health and Environmental Control

Berry sued the Department in circuit court seeking relief from an enforcement action. The circuit court ruled it lacked subject matter jurisdiction and dismissed. The Court affirmed. It held that South Carolina Code 48-39-180 only allows review of permit revocation orders and Berry only sought review of the enforcement order issued in his administrative proceeding. Thus, jurisdiction over the enforcement order was in the administrative law court, the circuit court lacked jurisdiction and the case was properly dismissed.

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