On Nov. 11th Appraisal Scoopreported that a new AppraisalPort® User Agreement scheduled to become effective December 13, 2008 had been released. The old and new versions were compared:
According to the Liability Administrator's Appraiser Legal Defense and Insurance Blog:
The only material difference between the two versions is that FNC took the following words out of the last item: “whether any such liability, damages, loss, or claim arises from any act or omission of AppraisalPort (including its sole ordinary or gross negligence) or act or omission of any supplier of data to AppraisalPort (including their sole ordinary or gross negligence).”
While facially appealing, in our view, this deletion does not really change the meaning of the indemnity provision. In other words, if FNC gets sued for any reason based on an appraisal delivered by you through AppraisalPort, FNC could still argue that you are obligated to indemnify FNC for losses or damages that FNC incurs as the result of that lawsuit even if the lawsuit is based on a problem caused by FNC.
This means that, for example, if FNC is sued by a lender for a problem that occurred in your report such as the omission of appraisal data caused by an error inherent in the software, FNC could potentially argue that you must pay FNC’s costs in defending that lawsuit and any damages that FNC may pay to the lender. In this way, the two versions are more or less the same. And again, your insurance cannot cover these additional liabilities that you agree to assume to FNC and its suppliers in the user agreement.
Click Here to Read Full PostThanks to Al Torres for the tip!
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