If Frank walked into my law office
I would review the pre-sale survey and the post -sale survey and find the language in the pre-sale survey limiting the use of the survey to the owner/seller and I would also find the language limited the surveyor's liability to the amount paid for the survey. I would find this same limitation of liability language in the post-sale survey. I would tell Frank that the limitation of liability clause in the surveys is probably enforcable. As to defective but actually attempted repairs to the boat I would tell Frank that the craftperson had no privity of contract ( fancy way of saying no future or continuing duty or relationship) to Frank and therefore no basis for liablity as to the repair guy. As to ommitted or ficticious repairs that the seller paid for, without knowledge of the fraud, same result, as repair guy defrauded seller not Frank. Now to the meat of the issue. If the seller knew of hidden or latent defects, most states' laws require disclosure of these defects by the seller. This is what is known to lawyers as a question of fact or a proof problem and Frank would be the one to have to prove the fact. The problem is proving that the seller knew of a hidden defect. I am new to boat ownership so perhaps others can come up with a better example of a hidden defect that the seller must have known about. My example would be a holding tank which is installed but not connected. But even then the seller would say he never used the head, just discharged from the rail. As I understand Frank's situation, the boat's defects were discovered months? after purchase. The longer it takes to find a hidden defect the harder it is to prove the seller must have know about it. As to any hull insurance Frank bought, it generally covers things that break because because some thing was hit or caught fire. Crack your hull on a rock, insurance coverage. Find 1000 hull blisters at next haul out, no insurance coverage. A few final points. Repair labor is in the $50 to $85 hourly range. Lawyer labor is in the $175 to $290 hourly range. Put a good craftsman on the job and things get fixed. Put a good lawyer on the case, and there is no guaranteed result. Assume Frank spends $8,500 on a lawyer and gets a $50,000 judgment agaist the seller. Judgments are not self-collecting. It is not illegal to not pay a judgment, so more legal fees. If the seller does not have substantial wealth, any judgment is not worth attempting to collect. Fraud is probably not dischargable in bankrupcy. Negligent representation liability is dischargable. I would sure like to know the specifics of the defects in Frank's boat and how/when they were discovered. Hoping the above was of some value, Scott Wilson
I would review the pre-sale survey and the post -sale survey and find the language in the pre-sale survey limiting the use of the survey to the owner/seller and I would also find the language limited the surveyor's liability to the amount paid for the survey. I would find this same limitation of liability language in the post-sale survey. I would tell Frank that the limitation of liability clause in the surveys is probably enforcable. As to defective but actually attempted repairs to the boat I would tell Frank that the craftperson had no privity of contract ( fancy way of saying no future or continuing duty or relationship) to Frank and therefore no basis for liablity as to the repair guy. As to ommitted or ficticious repairs that the seller paid for, without knowledge of the fraud, same result, as repair guy defrauded seller not Frank. Now to the meat of the issue. If the seller knew of hidden or latent defects, most states' laws require disclosure of these defects by the seller. This is what is known to lawyers as a question of fact or a proof problem and Frank would be the one to have to prove the fact. The problem is proving that the seller knew of a hidden defect. I am new to boat ownership so perhaps others can come up with a better example of a hidden defect that the seller must have known about. My example would be a holding tank which is installed but not connected. But even then the seller would say he never used the head, just discharged from the rail. As I understand Frank's situation, the boat's defects were discovered months? after purchase. The longer it takes to find a hidden defect the harder it is to prove the seller must have know about it. As to any hull insurance Frank bought, it generally covers things that break because because some thing was hit or caught fire. Crack your hull on a rock, insurance coverage. Find 1000 hull blisters at next haul out, no insurance coverage. A few final points. Repair labor is in the $50 to $85 hourly range. Lawyer labor is in the $175 to $290 hourly range. Put a good craftsman on the job and things get fixed. Put a good lawyer on the case, and there is no guaranteed result. Assume Frank spends $8,500 on a lawyer and gets a $50,000 judgment agaist the seller. Judgments are not self-collecting. It is not illegal to not pay a judgment, so more legal fees. If the seller does not have substantial wealth, any judgment is not worth attempting to collect. Fraud is probably not dischargable in bankrupcy. Negligent representation liability is dischargable. I would sure like to know the specifics of the defects in Frank's boat and how/when they were discovered. Hoping the above was of some value, Scott Wilson
