Special offer

Do you have $40,000 to give away??? Agent Negligence Suit in Process

By
Real Estate Broker/Owner with Highland Realty, Inc 0225 099336

 

How far does a fiduciary duty or responsibility extend? As a listing agent, it can go pretty far. As this lawsuit amply displays, we are more than "marketers" and have significant responsibilities in working for and with our listing clients. We need to be constantly assessing and evaluating our actions and responsibilities to all of our clients or, we may find ourselves scrutinizing our E&O policy to see what's next.

Negligence Lawsuit over Gas Shutdown Reinstated

An Ohio appellate court has considered whether a real estate broker breached his fiduciary duty by failing to notify an absent owner that the gas company was attempting to contact him about a gas shutdown on the property during winter.

In September 1999, Debra and Andrew Dennewitz (“Owners”) listed a home (“Property”) for sale with Charles Amato (“Salesperson”) of Century 21 Arrow Realty, Inc. (“Brokerage”). A “for sale” sign showing the Brokerage’s name was placed in the front yard of the Property. The Property was vacant from August 1999 until it was sold in May 2000 because the Owners had moved to another town. One of the Owners had called East Ohio Gas NKA Dominion (“Gas Company”) and told them that they wanted to continue gas service on the Property, arranging to have the gas bills sent to his new address. He received and paid these bills from his new address.

In November 1999, one of the Owners visited the Property and discovered a notification that a gas main relocation was about to take place because of nearby road construction. He called the Gas Company and asked them to notify him at his new address of any changes on the Property because he was in the process of selling it. While the Owners continued to periodically visit the Property, they did not come between December 14, 1999 and January 2, 2000.

In November, an employee of the Gas Company also called the Brokerage to notify him of the impending shutdown, leaving a voicemail for the Salesperson and also a message with a secretary about the shutdown. On December 15th, the Gas Company left a notice on the Property that the gas would be turned off the next day. The employee of the Gas Company again called the Salesperson, leaving messages for the Salesperson about the shutdown.

On December 16th, the Gas Company shut down the Property’s gas line. An employee of the Gas Company was told that the Salesperson would meet him at the Property on December 16th, but no one showed up to meet the Gas Company employee. On December 17th, an employee from the Gas Company called the Salesperson and left a message stating that it was “imperative” that someone meet him at the Property. The employee also testified that all of the notices about the gas shutdown had been picked up. The Salesperson and Brokerage denied any knowledge of the gas shutdown.

On January 3, 2000, the Owners learned of the gas shutdown. The Owners made arrangements to have the gas turned on that day. When one of the Owners arrived at the Property, he discovered that the water pipes had burst and there was a pool of water in the basement. The Property sustained damage in excess of $40,000. State Farm Fire & Casualty Company (“Insurance Company”) paid the Owners’ insurance claim after receiving payment of the $250 deductible from the Owners and then it became subrogated to any claims over who was responsible for the damage.

The Insurance Company filed a lawsuit against the Salesperson, Brokerage, and the Gas Company for the damage to the Property. The Gas Company filed a counterclaim and cross claim against the Brokerage. The trial court entered summary judgment in favor of the Salesperson and the Brokerage, but allowed the other actions to proceed to trial. Following a bench trial, the trial court ruled in favor of the Insurance Company. The Insurance Company appealed the dismissal of the allegations against the Brokerage and the Salesperson, and the Gas Company appealed the judgment entered against it.

The Court of Appeals of Ohio, Eighth District, reversed the trial court. The Gas Company argued that the trial court lacked jurisdiction to hear the claims made against it because the Gas Company is regulated by the Public Utilities Commission of Ohio (“Commission”) and all service related-issues need to be brought before the Commission. The trial court had found that since the complaint had a tort claim (negligence), the court could hear this case. The appellate court disagreed and found that the allegations in the complaint focused on service-related issues, meaning these were the exclusive regulatory province of the Commission. Thus, the court reversed the judgment against the Gas Company because the trial court lacked jurisdiction to hear these claims.

Next, the court considered the allegations against the Brokerage and the Salesperson. The trial court had ruled in favor of the Brokerage and the Salesperson because it found that the Salesperson had no duty to notify the Owners of the gas shutdown. The Brokerage and Salesperson further argued that they were not retained to manage the Property, but instead only had the job of finding a purchaser for the Property.

The court found that because the Salesperson had a fiduciary relationship with the Owners, he had a duty to notify the Owners of the gas shutdown if he was aware of the shutdown. In Ohio, a real estate salesperson owes his/her client certain statutory fiduciary duties as well as common law fiduciary duties. Based on the facts alleged in the lawsuit, the court determined that a real estate licensee has a fiduciary duty to use reasonable care and skill during the representation of a client, and so would have a duty to warn the client of any foreseeable damage to the property because this damage would have a material effect on the subject matter of the agency relationship.

The court also found that an individual can assume a duty. Here, the Gas Company had testified that the Salesperson had agreed to meet with them on the property. If the trial court found this fact to be true, the court could rule that the Salesperson had assumed this duty. Thus, the court found that the Insurance Company had alleged facts which could create a legal duty for the Salesperson and so the case was sent back to the trial court for further proceedings.

 **********************

If you were the next judge to review this case, how would you rule? Why? 

 

Dave Cheatham
INC Financial - Bartlett, IL

Wow, I never knew that this went this far.  It eally makes one think about what they are doing.  We must be looking out for our clients in every way.  I know way to many people do not always think of every little area, but when we get calls, emails or faxes, we better look at them through our clients eyes. Thank you for sharing this.

Dave

Nov 30, 2006 03:27 AM
Leo Namiot - LeoLends.com
Canopy Mortgage - Leo Namiot - Saint Augustine, FL
More than just great rates
Wow... now that will make you think. It's amazing what people can be blamed for or left on the hook for.
Nov 30, 2006 03:28 AM
Kaushik Sirkar
Call Realty, Inc. - Chandler, AZ
Ouch.....reminder, if nothing else, to respond to every missed call/voicemail!!
Nov 30, 2006 03:43 AM
Michele Connors
The Overton Group, LLC Pitt & Carteret County - Greenville, NC
Your Eastern North Carolina Realtor
Wondering why the sellers didnt receive notice or phone notification if they left forwarding info. It seems the ownerss could have been given responsibility to find someone(including the agent) to meet for shut off day. It sounds like the gas company made the decision to make the agent the contact as it was the easy # to locate since it was on a sign on yard. Either way- if the agent was picking up the notices- shame on him/her for not following thru if he /she really knew what was going on!
Nov 30, 2006 03:55 AM
Marc Blasi
Palm Beach Gardens, FL

OK - you are the Sellers agent - you don't make anything unless the house sells........  why wouldn't you want to take of the place like it was your baby?!? DUH.

If the salesperson recieved all of those notices and did nothing it's his/her fault.

Nov 30, 2006 03:56 AM
Mitchell J Hall
Manhattan, NY
Lic Associate RE Broker - Manhattan & Brooklyn
I would rule that the salesperson and broker are guilty. A listing agent has a fiduciary responsibility to their client. I think they were negligent. I think when an owner is not living in the house the listing agent has an extra responsibility to protect the property.
Nov 30, 2006 04:05 AM
Yael Warman
Right About Real Estate - Dania Beach, FL

In Florida a Broker can engage in either a non-represantion relationship, a transaction borkerage relationship or a single agency relationship with a Seller or Buyer.
As a single agent a broker has fiduciary responsibilities and fully represents the principal, therefore becoming responsible for each others acts. As a transaction broker, however, a Broker provides limited representation to the principal, which means that the principal is not responsible for the acts of the Licensee. Note how it does not say however that the licensee is not responsible for the actions -or inactions-of the pricipal.
Having had said that though, I read recently a court rulings in which a listing agent was found to be responsible for injuries sustained by a third party (potential buyer) at the principals home because they were single agents in the transaction. The ruling goes to expand that having been represented as transaction broker, the outcome might have been different.

Whichever way you decide to represent your clients, just make sure you understand you commitment. We used to be Single agents up until about 2 years ago, when we decided to become transaction brokers for every one of the transactions we handle.

Nov 30, 2006 05:30 AM
Anonymous
Shari George
Wow!!  I can't believe that the agent wouldn't want to respond or at least contact his seller.  When you list a property you are to look out for your sellers best interest, and that includes the condition of the property.  Like Marci stated, you are also looking out for your own interest as well!!  I believe that the salesperson is guilty of breaching his fiduciary duties, and that the gas company was negligent because they did not follow the instructions of the owner and send the information to his new address.  Did the gas company say anything about why they didn't send a notice in the mail to the owners?
Nov 30, 2006 06:06 AM
#8
Randy L. Prothero
eXp Realty - Hollister, MO
Missouri REALTOR, (808) 384-5645
I have no sympathy for the agent.  They really might want to consider another line of work.
Nov 30, 2006 07:32 AM
Jennifer Fivelsdal
JFIVE Home Realty LLC | 845-758-6842|162 Deer Run Rd Red Hook NY 12571 - Rhinebeck, NY
Mid Hudson Valley real estate connection

Thank you for sharing this.  I listed a house and the owner lives abroad, Although I was only contracted to  sell the house I call him about everything even if it is not related to the house sale.  I feel responsible and I know if I was in the same situation I would want to be notified.

 

Nov 30, 2006 07:58 AM
Lenn Harley
Lenn Harley, Homefinders.com, MD & VA Homes and Real Estate - Leesburg, VA
Real Estate Broker - Virginia & Maryland

Actually, if I have a seller out of town for any extended time, more than a couple of days, I want a POA in case of emergency, as in this case with the gas turnoff.  Often the utilities won't act on an agent's word without a POA. 

If an agent/broker doesn't want the responsibility of management of the property for an out of area owner, the agent/broker shouldn't take the listing.

There is noting new about agents having these responsibilities as with relocation practices where we actually pay the utility bills and later get reimbursement. 

No one said it was easy.  IMO, the agent and broker are guilty of negligence and I wonder if their E&O would cover.  I suppose it would, which is why we have it.  I don't believe this rises to the level of fraud or other criminal activity that would not be covered.  The defense is lame.  They make me ashamed. 

Nov 30, 2006 08:08 AM
Gabriel Silverstein
Angelic Real Estate, LLC - New York, NY
SIOR
I don't care if the fiduciary responsibility by law extended to cover this, but if the salesperson agreed to meet the gas company there, they certainly took it on in my opinion.  Furthermore, what kind of moron wouldn't call to tell their client about this?!  I think even if they aren't found legally liable as a fiduciary they ought to lose for stupidity.  At the end of it all, they are probably going to see this brought back to them to the tune of a lot more than $40,000 in bad publicity.  If I were the broker, I'd probably get rid of the salesperson.
Nov 30, 2006 11:28 AM
Carolyn Nelson
Realty One Carolina, LLC - Burlington, NC
Your Triangle to Triad Real Estate Expert!

If I was the next Judge, I would hold the Agent and then the Broker reponsible. Too often, emails and messages are not returned because of a lack of accountability. Your clients are your clients. I can only imagine how many of these types of situations go unmentioned.

I work with a lot of agents and have to leave a lot of messages on voices mails (office and cell) for the other agents. Many days will pass before I get a return call. Sometimes the agents don't return my call at all and will deny receiving the message. Luckily for me, the type of online system being used tracks the date, time, and duration of each call when it is placed.

Nov 30, 2006 02:23 PM
Carl Guild
Carl Guild & Associates - East Hampton, CT
Central Connecticut Real Estate
I to, agree with everyone here that the salesperson is responsible. If he said he was going to meet the gas company there then he implied he was going to take care of it. Looks like this agent has a problem with communication....
Nov 30, 2006 03:16 PM
Carole Cohen
Howard Hanna Cleveland City Office - Cleveland, OH
Realtor, ePRO
Our license law in Ohio stresses the phrase 'reasonable care.' There is no agent licensed, who has gone through the certification classes, who does not know that the above IS his or her responsiblity. I would rule that the agent and brokerage were responsible.
Nov 30, 2006 06:32 PM
Steve Hewson
KW Commercial Real Estate, LLC - Denver - Denver, CO
Denver Metro Comnulll Real Estate
The salesperson and broker should be responisble.  Should it even matter that we have fiduciary responsiblity or should excercise reasonable care?  If we are real estate professionals shouldn't we be looking out for our client's best interest and help care for the property.  Or do we only have listing responsibility only for the 3 P's--Put it in the MLS, Post a Sign, and Pray?  Let's work on earning the respect and credibiltiy we seek.
Dec 01, 2006 12:47 AM
Mike (Inspector Mike) Parks
Inspector Mike - Circleville, OH
Inspector Mike

From the new 2006 Residential Code of Ohio :

115.2 Maintenance. Residential buildings, structures and the building equipment shall be maintained in a safe and sanitary condition and in accordance with the condition(s) established in current and any previous plan approvals and certificates of occupancy. Devices or safeguards which are required by this code shall be maintained in conformance with the code edition under which installed. The owner or the owner's designated agent shall be responsible for the maintenance.

As a Residential Building Official I am required to know the code. I do not give legal advice. But if I sold real estate I would have my attorney read the last line of this Section.

I bring this up for those of you who manage or list vacant property.

Mike

 

Mar 04, 2007 12:40 AM