The petitioners herein and plaintiffs below, David F. Finch and Shirley R. Finch (hereinafter
I.
FACTUAL AND PROCEDURAL HISTORY
On July 7, 2009, Mr. and Mrs. Finch entered into a “Residential Real Estate Sale Contract” (hereinafter “purchase contract”) to purchase a house owned by Brian and Angela Richardson (hereinafter “Dr. and Mrs. Richardson” or “the Richardsons”). While neither the Finches nor the Richard-sons were represented by a real estate agent during the course of this transaction, Mrs. Finch is a licensed real estate agent. With respect to home inspections, the purchase contract provided that
[a] home inspection and report may be completed by a qualified inspector at the Buyer’s [Finches’] expense within fifteen (15) business days from the date of acceptance of this contract. This contingency shall terminate at the above-predetermined deadline, unless the Buyer delivers to the Seller [the Richardsons] a written statement listing the specific existing deficiencies and corrections desired, together with a copy of the inspection. The Seller may, at the Seller’s option, within (5) days after the delivery of the report, furnish the Buyer with a written statement that the condition shall be remedied before the date of settlement. If the Seller does not elect to make the repairs, or if the Seller makes a counter-offer, the Buyer shall have five (5) days to respond to the counter-offer or remove the contingency and take the property in its present condition or this contract shall become void with a refund of the full deposit being returned to the Buyer. The Buyer acknowledges that they have had a reasonable time to have any and all inspections conducted of the premises, and that they hereby forever waive and release the Sellers from any claim, suit or liability that may result from a defect that could have been revealed by a reasonable diligent inspection of the premises prior to purchase.[
(Emphasis and footnote added). The purchase contract did not expressly specify, however, that the contract was contingent upon a favorable home inspection or otherwise condition the purchase of the house upon the findings of the home inspector should one be retained.
Additionally, the purchase contract stated that,
[t]o the best of Seller’s [the Richard-sons’] knowledge, there are no physical problems with the property that would not be apparent upon inspection. Provided however, the Seller recommends and the buyer [sic] [the Finches] affirms that they will rely on the inspection rights of thebuyer [sic] and not on any representation of the Seller in making this purchased]
It is not apparent from the appendix record whether the Richardsons also had completed a separate, standard “Seller’s Property Condition Disclosure” form regarding the subject property.
Exercising their rights under the purchase contract, the Finches hired Inspectech to perform a home inspection of the subject property. As part of the house inspection, the Finches and Inspectech, by its representative, Gary Flanagan (hereinafter “Mr. Flanagan”), entered into an Inspection Agreement. At issue in the ease sub judice is the enforceability of the “Unconditional Release and Limitation of Liability” (hereinafter “release”) clause contained within the parties’ Inspection Agreement. The release provides:
It is understood and agreed that the COMPANY [Inspectech] is not an insurer and that the inspection and report are not intended to be construed as a guarantee or warranty of the adequacy, performance or condition of any structure, item or system at the property address. The CLIENT [the Finches] hereby releases and exempts the COMPANY and its agents and employees of and from all liability and responsibility for the cost of repairing or replacing any unreported defect or deficiency and for any consequential damage, property damage or personal injury of any nature. In the event the COMPANY and/or its agents or employees are found liable due to breach of contract, breach of warranty, negligence, negligent misrepresentation, negligent hiring or any other theory of liability, then the liability of the COMPANY and its agents and employees shall be limited to a sum equal to the amount of the fee paid by the CLIENT for the inspection and report.
(Emphasis in original). Mr. Flanagan performed the subject home inspection on July 9, 2009, and reported his findings to the Finches.
Thereafter, the Finches purchased the Richardsons’ house on August 19, 2009, for $160,000. Within one week of closing, the Finches discovered water damage; prior repairs to correct said water damage; and water infiltration in the basement of their new home, as well as structural problems affecting the house’s foundation. The Finches allege that these defects were not previously detectable because the location of a workbench owned by the Richardsons concealed the water damage, and, thus, the Finches claim that they could not fully view this portion of the house until the Richard-sons had removed all of their belongings.
At the request of the Finches, Mr. Flanagan performed an additional inspection of the subject property on September 11, 2009. In his report, Mr. Flanagan observed that he had
re-examine[d] some of the foundation cracks in the front and rear foundation walls. It does appear that some of these cracks are beginning to “re open” which does appear to indicate possible recent movement. There does appear to be evidence that some of the cracks were sealed/ filled and recently painted prior to the home inspection that was completed July 9th. Although it was mentioned in the original home inspection that there had been substantial foundation repairs/replacement completed to this residence, [sic] Predicting the rate of any past or future movement is outside the scope of a normal home inspection. Therefore, it is recommended [that] a qualified structural engineer examine all areas in question to determine if additional repairs are required or should these recent cracks be monitored.
The Finches then filed the instant lawsuit against the Richardsons and Inspectech seeking to recover, among other things, the approximately $39,000 they have expended to remedy and repair the house’s water and structural issues. In their complaint, the Finches (1) alleged that the Richardsons failed to disclose and/or concealed these defects
Inspectech then filed a motion for summary judgment claiming that the release set forth in the parties’ Inspection Agreement relieved it of liability for any negligence in its inspection of the subject home and its attendant inspection report.
[a] review of the Inspection Agreement at issue in this case indicates that the UNCONDITIONAL RELEASE AND LIMITATION OF LIABILITY was conspicuously identified and absolutely unambiguous. Additionally, the Finches appear to have released Inspectech from liability for the very damages that they seek by this lawsuit, namely the cost of repairing and replacing any unreported defect or deficiency. Particularly important to the Court’s finding that the Finches clearly agreed to the anticipatory release is the fact that the UNCONDITIONAL RELEASE AND LIMITATION OF LIABILITY appears on the Inspection Agreement immediately above Mrs. Finch’s signature.
Therefore, the Court finds and concludes that there is no genuine issue of material fact and that Defendant Inspectech, LLC[,] is entitled to judgment as a matter of law [sic] that the Plaintiffs contractually released Defendant Inspectech, LLC[,] from all liability and responsibility for the cost of repairing and replacing any unreported defect or deficiency and for any consequential damage, property damage or personal injury of any nature and that the Plaintiffs’ claims in this case are dismissed as to Defendant Inspectech, LLC.
From this adverse ruling, the Finches appeal to this Court.
II.
STANDARD OF REVIEW
Before this Court, the Finches challenge the circuit court’s grant of summary judgment to Inspectech based upon that tribunal’s interpretation of the parties’ Inspection Agreement in accordance with existing law. Given the nature of the instant controversy, we must consider the issues raised by the parties in light of multiple, interrelated standards of review.
We first are called upon to decide whether disposition of the Finches’ claims against Inspectech by way of summary judgment was appropriate. Our review of a lower court’s order granting a party’s motion for summary judgment is plenary: “A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt. 1, Painter v. Peavy,
Rule 56(c) of the West Virginia Rules of Civil Procedure requires a court to award summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Emphasis added). Stated otherwise,
[a] motion for summary judgment should be granted if the pleadings, exhibits and discovery depositions upon which the motion is submitted for decision disclose that the case involves no genuine issue as to any material fact and that the party who made the motion is entitled to a judgment as a matter of law.
Next we must consider the overarching framework within which the instant controversy has presented itself: the parties’ Inspection Agreement contract. In determining that Inspectech was entitled to summary judgment, the circuit court concluded that the subject contractual terns were valid and enforceable. We previously have held that “ ‘[i]t is the province of the Court ... to interpret a written contract.’ Syl. Pt. 1[, in part], Stephens v. Bartlett,
Finally, we must determine the pivotal question of law presented by the case sub judice: whether the subject contractual provision at issue, which purports to release Inspectech from claims resulting from its allegedly negligent performance of a house inspection, is valid and enforceable. “Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L.,
In accordance with these standards, we now consider the parties’ arguments.
III.
DISCUSSION
The instant appeal presents a single question for our consideration and resolution: is an anticipatory release in a home inspection contract that releases the home inspector from claims related to defects that are not reported in the home inspection report valid and enforceable? We answer this question in the negative: an anticipatory release in a home inspection contract is invalid and unenforceable because such a contractual provision is violative of and contrary to the public policy of this State.
At issue in this proceeding is the anticipatory release contained in the parties’ Inspection Agreement contract. This clause provides:
UNCONDITIONAL RELEASE AND LIMITATION OF LIABILITY
It is understood and agreed that the COMPANY [Inspectech] is not an insurer and that the inspection and report are not intended to be construed as a guarantee or warranty of the adequacy, performance or condition of any structure, item or system at the property address. The CLIENT [the Finches] hereby releases and exempts the COMPANY and its agents and employees of and from all liability- and responsibility for the cost of repairing or replacing any unreported defect or deficiency and for any consequential damage, property damage or personal injury of any nature. In the event the COMPANY and/or its agents or employees are found liable due to breach of contract, breach of warranty, negligence, negligent misrepresentation, negligent hiring or any other theory of liability, then the liability of the COMPANY and its agents and employees shall be limited to a sum equal to the amount of the fee paid by the CLIENT for the inspection and report.
(Emphasis in original). Based upon this contractual language, the circuit court awarded
Before this Court, the Finches argue that the subject anticipatory release provision is invalid and unenforceable as contrary to public policy because it insulates Inspeeteeh by relieving it of liability for any and all damages they have suffered as a result of Inspeetech’s allegedly negligent performance of its inspection of the subject house and its preparation of the resultant inspection report. In this regard, the Finches contend that Mr. Flanagan, who performed the home inspection and prepared the home inspection report for Inspeeteeh, held himself out as having been certified as a home inspector by the State of West Virginia. Nevertheless, the Finches assert that they have no recourse against either Mr. Flanagan or Inspeeteeh for failure to abide by such certification standards because the subject release precludes them from asserting any claims for damages resulting from said home inspection. Thus, the Finches argue, the anticipatory release in the parties’ Inspection Agreement thwarts the protections afforded to home buyers by the State’s certification standards, and, as such, the release violates public policy because it provides a disincentive for experts to fully and adequately perform the services they are hired and paid to perform. Citing Kyriazis v. University of West Virginia,
By contrast, Inspeeteeh disagrees with the Finches’ characterization of the anticipatory release as contrary to public policy and argues, instead, that this provision does not violate public policy because it did not provide or perform a public service in inspecting the Finches’ prospective home. As an independent home inspection company, Inspected! contends that it is not a public service entity as contemplated by the Kyriazis opinion, which determined public service status based upon the nature of the entity providing the service, not upon the nature of the service provided. See Syl. pt. 3, Kyriazis,
The case sub judice presents a matter of first impression as to whether an anticipatory release or limitation of liability clause in a home inspection contract is valid, although this Court twice has found such clauses to be unenforceable in other contexts. In the first such case, Murphy v. North American River Runners, Inc.,
In reaching this result, the Court found that the West Virginia Whitewater Responsibility Act, W. Va.Code § 20-3B-1 et seq.,
imposes in general terms certain statutory duties upon commercial whitewater outfitters ...; recognizes liability for violation of these statutory duties; and immunizes commercial whitewater outfitters ... from tort liability to participants in whitewater rafting expeditions for harm resulting from the inherent risks of this recreational activity which are essentially impossible to eliminate regardless of all feasible safety measures.
Murphy,
The Court next considered the validity of anticipatory releases in Kyriazis v. University of West Virginia,
Generally, in the absence of an applicable safety statute, a plaintiff who expressly and, under the circumstances, clearly agrees to accept a risk of harm arising from the defendant’s negligent or reckless conduct may not recover for such harm, unless the agreement is invalid as contrary to public policy. When an express agreement is freely and fairly made, between parties who are in an equal bargaining position, and there is no public interest with which the agreement interferes, it generally will be upheld.
Syl. pt. 1, Kyriazis,
A clause in an agreement exempting a party from tort liability is unenforceable on grounds of public policy if, for example, (1) the clause exempts a party charged with a duty of public service from tort liability to a party to whom that duty is owed, or (2) the injured party is similarly a member of a class that is protected against the class to which the party inflicting the harm belongs.
Syl. pt. 2, Kyriazis,
[w]hen a state university provides recreational activities to its students, it fulfills its educational mission, and performs a public service. As an enterprise charged with a duty of public service here, the University [WVU] owes a duty of due care to its students when it encourages them to participate in any sport.
Id. Lastly, we concluded that, because WVU had employed an attorney to prepare the subject release and had required students to sign the release as a prerequisite to their participation in the Rugby Club, WVU possessed a “decisive advantage in bargaining strength over the [student] at the time he signed the Release,” which rendered the contract one of adhesion and, thus, unenforceable. Id.
The facts of the ease sub judice also involve a contract that includes an anticipatory release provision that seeks to limit the liability of the party drafting the contract. Here, the Finches contracted with Inspected! for an inspection of the house they were planning to purchase, and the Inspection Agreement included a provision whereby Inspectech sought to limit its liability with respect to its performance of the subject home inspection and its preparation of the resultant home inspection report. Whether this limitation of liability provision is enforceable, however, depends upon whether the inclusion of this exculpatory provision is consistent with or contrary to the public policy of this State. See generally Kyriazis v. University of West Virginia,
As our prior opinion in Murphy determined, a limitation of liability contractual provision may be invalidated as contrary to public policy if it absolves a party of liability for failure to conform to a statutorily imposed standard of conduct. See Syl. pt. 1, Murphy,
[t]his rule establishes the procedures to be followed to assure that consumers of home inspection services can rely on the competence of home inspectors, as determined by educational and experience requirements and testing. In order to protect consumers, this rule defines home inspection, outlines what must be included in a home inspection, defines unethical conduct by home inspectors and creates penalties for prohibited acts.
W. Va.C.S.R. § 87-5-1.1 (2006). Subsequent provisions of the rule require home inspectors to be certified and define the requirements for certification, W. Va.C.S.R. §§ 87-5-2 to 87-5-10; adopt general standards of practice for the home inspection industry, W. Va.C.S.R. § 87-5-11.1; specify what components of a house must be inspected and reported upon, W. Va.C.S.R. §§ 87-5-14 to 87-5-23; impose responsibilities upon home inspectors, W. Va. C.S.R. § 87-5-24; and provide procedures for the disposition of consumers’ complaints about home inspectors and their provision of home inspection services, W. Va.C.S.R. §§ 87-5-26 to 87-5-27.
From the plain language of these home inspector regulations, it is clear that there exists in this State an established standard of conduct with which home inspectors are expected to comply in performing home inspections and in preparing reports for their dicate. This standard of conduct renders unenforceable exculpatory clauses in home inspection contracts that purport to exempt home inspectors for their failure to comply with such conduct standards. See Syl. pt. 1, Murphy,
Moreover,
In its order granting summary judgment, the circuit court concluded that “Defendant Inspecteeh, LLC[,] is entitled to judgment as a matter of law” because the Finches had “contractually released Defendant Inspecteeh, LLC[,] from all liability and responsibility for the cost of repairing and replacing any unreported defect or deficiency and for any consequential damage, property damage or personal injury of any nature.” Because we find the subject release to be invalid and unenforceable as contrary to the public policy of this State, Inspecteeh is not entitled to judgment as a matter of law because this release does not operate to bar the Finches’ claims against Inspecteeh. Absent a party’s entitlement to judgment as a matter of law, summary judgment is improper. See Syl. pt. 5, Wilkinson v. Searls,
IV.
CONCLUSION
For the foregoing reasons, the January 11, 2011, order of the Circuit Court of Wood County is hereby reversed, and this ease is remanded for further proceedings consistent with this opinion.
Revei’sed and Remanded.
Notes
. The purchase contract additionally referenced a "Wood Destroying Insect Inspection,” which inspection is not at issue in the instant proceeding.
. Although the appendix record purportedly contains a copy of this inspection report, the documents designated as constituting the inspection report contain only boilerplate language and do not detail Mr. Flanagan’s precise findings as to the particular house he inspected.
. It is unclear from the appendix record in this case whether the Finches’ claims against the Richardsons have been resolved or if they remain pending. In any event, the instant appeal does not involve the Finches' claims against the Richardsons, and the Richardsons are not parties to the instant appeal.
. The Kyriazis opinion further reiterated and considered the six factors recognized by the California Supreme Court as indicative characteristics of a "public service" in Tunkl v. Regents of University of California,
. Although our holding in Syllabus point 1 of Murphy,
. This holding is consistent with the position adopted by the majority of jurisdictions that have considered the validity of limitation of liability provisions in home inspection contracts and have concluded that such exculpatory clauses are invalid and unenforceable as contrary to public policy. See, e.g., Carleton v. Winter,
However, one jurisdiction, New York, has issued decisions both enforcing and refusing to enforce limitation of liability clauses in home inspection contracts. See, e.g., Smith-Hoy v. AMC Prop. Evaluations, Inc.,
Furthermore, consistent with the majority position declaring exculpatory clauses in home inspection contracts to be unenforceable as contrary to public policy, several jurisdictions also have adopted statutes that specifically prohibit the inclusion of an anticipatory release or limitation of liability provision in a contract for home inspection services. See, e.g., Alaska Stat. Ann. § 08.18.085(d) (West 2003) (“Contractual provisions that purport to limit the liability of a home inspector to the cost of the home inspection report are contrary to public policy and void.”); Cal. Bus. & Prof.Code § 7198 (West 1996) ("Contractual provisions that purport to waive the duty owed pursuant to Section 7196, or limit the liability of the home inspector to the cost of the home inspection report, are contrary to public policy and invalid.”); Mass. Gen. Laws Ann. ch. 112, § 225(6)(v) (West 2000) (allowing for denial, refused renewal, limitation, suspension, or revocation of home inspector’s license upon violation of ethical standards, including "attempting to limit liability for negligent or wrongful errors or omissions by use of a clause within a performance contract that limits the cost of damages for negligent or wrongful errors or omissions”); Wis. Stat. Ann. § 440.976 (West 1997) ("No home inspector may include, as a term or condition in an agreement to conduct a home inspection, any provision that disclaims the liability, or limits the amount of damages for liability, of the home inspector for his or her failure to comply with the standards of practice prescribed in this subchapter or in rules promulgated under this subchapter."). By contrast, other jurisdictions permit the inclusion of exculpatory provisions in home inspection contracts, but strictly limit the extent to which the home inspector may relieve himself/herself of liability. See, e.g., Kan. Stat. Ann. § 58-4505 (West 2011) (providing for suspension or revocation of home inspector’s registration or imposition of probationary conditions if home inspector “includ[es] as a term or condition in an agreement to conduct a home inspection any provision that disclaims the liability of the registered home inspector for any errors and omissions which may arise during a home inspection or to limit the amount of damage for liability for any errors and omissions which may arise during a home inspection to less than $10,000 in the aggregate for each home inspection”); 68 Pa. Stat. Ann. § 7507(a)(1) (West 2000) (“The following types of provisions in a contract with a home inspector for the performance of a home inspection are contrary to public policy and shall be void: ... a limitation on the liability of the home inspector for gross negligence or willful misconduct.”). But see, e.g., Md.Code Ann., Bus. Occ. & Prof. § 16-4A-01(c) (West 2008) (requiring only that “[a]ny limitation of the liability of the licensee for any damages resulting from the report on the home inspection shall be agreed to in writing by the parties to the home inspection prior to the performance of the home inspection”).