Glassford v. BrickKicker and GDM Home Services, Inc.
35 A.3d 1044
Vt.2011Background
- Plaintiffs contracted to have a home inspection as part of buying a house and signed a BrickKicker preprinted contract after the inspector presented it at the inspection.
- The contract limited BrickKicker’s liability to the inspection fee (285) and required arbitration for all disputes.
- Arbitration rules attached to the contract would charge fees (e.g., minimums that exceed the liability cap) and shift costs to plaintiffs.
- Plaintiffs filed suit for negligent home inspection; BrickKicker moved for summary judgment, arguing arbitration was the forum and limits applied.
- The superior court granted dismissal, treating arbitration as the sole forum and declining CFA/unconscionability arguments.
- On appeal, the Vermont Supreme Court held the limited liability and arbitration provisions are unconscionable and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the liability limit and arbitration clause unconscionable? | Glassfords contend terms are substantively and procedurally unconscionable. | BrickKicker argues terms are permissible and arbitration may proceed under law. | Yes; both limited liability and arbitration provisions are unconscionable and unenforceable. |
| Does the contract’s fee structure render arbitration illusory? | Arbitration costs exceed potential recovery under the liability cap, insulating BrickKicker from liability. | Fees are standard administrative costs; arbitration remains valid. | Illusory remedy; arbitration ineffective given fees exceeding cap. |
| May the court sever unconscionable terms or void the contract entirely? | Only sever the unconscionable terms if not the essential purpose of the contract. | Limitations could be severed if appropriate without undermining contract. | Court may sever both limited liability and arbitration provisions; it declines to sever only one and voids both due to their interconnection. |
| Does CFA support leaving these terms in place or voiding them? | CFA claims remain viable and should be analyzed on remand. | CFA claims were addressed on the merits prior to remand. | CFA claims to be reviewed on remand; not resolved at this stage. |
Key Cases Cited
- Dalury v. S-K-I, Ltd., 164 Vt. 329 (1995) (exculpatory clauses evaluated under public policy; Dalury guides unconscionability analysis)
- Lucier v. Williams, 841 A.2d 907 (N.J. Super. Ct. App. Div. 2004) (limits on liability can be unconscionable when nominal relief undermines remedy)
- Hemer v. Housemaster of Am., Inc., 793 A.2d 55 (N.J. Super. Ct. App. Div. 2002) (importance of home inspection service and consumer reliance considerations)
- Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 (Tex. Ct. App. 2005) (conspicuous liability limits may be upheld; contrast with inconspicuous terms)
- In re Poly-America, L.P., 262 S.W.3d 337 (Tex. 2008) (severability of illegal/unconscionable provisions if not essential to agreement)
- Val Preda Leasing, Inc. v. Rodriguez, 149 Vt. 129 (1987) (public policy considerations in exculpatory clauses)
- Union Sch. Dist. #45 v. Wright & Morrissey, Inc., 183 Vt. 555 (2007) (arbitration policy and voluntary agreement considerations in Vermont)