Submitted: March 12, 2019
A. Campbell, Esq., Attorney for Plaintiff.
m. shalk, Esq., Attormey For Hickory Hill.
P. Callaway, Esq, Attorney For Myro Corp.
W. Adkins, Esq., Attorney For Caroline Scott.
ORDER ON MYRO CORPORATION'S MOTION FOR SUMMARY
J. SMALLS, CHIEF JUDGE.
matter is before the Court on Defendant Myro
Corporation's (hereinafter "Myro") Motion for
Summary Judgment. The Plaintiffs, William and Terri Gorol,
(hereinafter "Gorols") brought this action against
seller Caroline W. Scott, (Defendant, Third Party Plaintiff)
for failing to disclose property defects, and against Myro
for negligence and breach of contract for failing to disclose
material defects in the conditions of the property.
Myro's response to the summary judgment motion allege
that any recovery by Gorols is limited to $710.00, based on
the terms of the contract and Delaware law.
AND PARTIES' CONTENTIONS
31, 2015, the Gorols entered into an agreement of sale
whereby they agreed to purchase real property at 533 Fairway
Dr. in Bethany Beach, Delaware. The agreement of sale
included an inspection contingency granting the Gorols the
option of obtaining a professional inspection of the
property. Gorols contracted with Amerispec Inspection
Services to conduct a home inspection on the property prior
to the purchase. Amerispec is a franchise operated and owned
by Defendant Myro Corporation. On September 15, 2015,
Amerispec performed a pre-settlement limited inspection of
the property noting that the condition of the crawlspace and
the crawlspace items were "satisfactory". Over the
course of the contract, Amerispec performed three inspections
of the crawlspace: two structural and one termite inspection.
At no time did the inspection indicate there was any problem
with crawlspace or any evidence which would warrant further
investigation. The Gorols closed on the sale of the home on
October 9, 2015. Subsequent to closing, the Gorols became
aware that the crawlspace had a rotten floor, and the
estimated repairs would cost approximately $29, 000.00.
December 14, 2016, the Gorols brought this action against
Caroline Scott and Myro Corporation. The complaint includes
actions for breach of contract and/or negligence against Myro
Corporation. The complaint further alleges that Amerispec
undertook the obligation to inspect the property and provide
reliable inspection information regarding the condition of
the property. It is further allege they breached the contract
by failing to disclose material defects regarding the
condition of the property. Plaintiffs seeks judgment in the
amount $29, 000.00, interest, attorney's fees, cost, and
any other relief the Court may find appropriate.
motion dated September 20, 2018, Myro allege that should any
liability arise on its part, it is limited to the "cost
of services" as stipulated in the contract agreement.
Myro maintains "the parties agreed to an unambiguous
contractual provision which limit any damages related to
claims for negligence or breach of contract to the cost of
services provided." Myro argues the single paragraph
entitled "Limit of Liability" set forth in the
inspection contract is conspicuous and clearly written.
Moreover, the Gorols agreed to the same contract term on two
separate occasions prior to purchasing the property.
October 23, 2018, the Gorols filed its response to Myro's
motion for summary judgment. The Gorols' argument relies
heavily on the well-established principle that contractual
provisions that relieve a party from liability resulting from
their own conduct are disfavored under Delaware Law.
Moreover, unless it is proven after trial that the parties
specifically addressed this issue and contemplated that the
language used would protect the parties in the same
circumstances, the limitation of liability provision is
unenforceable. The Gorols argue that a question of fact
exists in regards to the mindset of the parties at the time
the contract was signed. The Gorols also allege that the
contract provision is unconscionable and therefore invalid.
March 1, 2019, the Court conducted a hearing on the Motion.
Following oral arguments, the Court took the matter under
advisement. Both parties were afforded the opportunity to
submit follow up written arguments regarding their relative