Sued by an Unhappy Client: What I Would Have Done Differently

First let me say that I’m truly overwhelmed and appreciative for all the support that I’ve received from my readers and the photo community. Being sued, regardless of the outcome, is a tough experience that can take it’s toll on anyone who’s emotionally invested in their business – as I am. Reading your positive comments and emails has definitely been encouraging and validating. Thank you!

Among the many comments that my post received, one question that stood out for a more detailed response was “What you would have done differently?” That’s a fair question and one I’ll answer as best I can.

When it comes to how we interacted with the client and the level of service that we offered, I would have handled it pretty much as we did. Perhaps if I had a crystal ball that could have foreseen the future, I would have pursued a different tack at the beginning. But knowing what we knew when we knew it, I would not have done anything differently. Not only did we live up to our side of the bargain, we went above and beyond.

The most important thing I would have done differently is involve the Professional Photographer’s of America (PPA) in this case from the outset. I’m a PPA member and am covered by their Indemnification Trust – as are all wedding photographer members. (Wedding photographers who join the PPA are automatically charged $50 extra for this.) The Trust is essentially an insurance policy for when the client is unhappy and makes a claim for improperly performed services. (“Indemnification” is a fancy word for insurance. I suspect they call it something other than “insurance” because they don’t want to follow the rules that apply to normal insurance companies.)

Insurance for dissatisfied customers is referred to as Errors and Omissions or Professional Liability coverage. Your regular business policy does not include this kind of coverage since it stipulates that there must be actual physical damage to property or physical injury to a person for a claim to be covered. When someone doesn’t like their photos or album design, there’s no property damage nor was anyone physically injured. In cases like mine, the PPA Indemnification Trust is one of the only sources of insurance coverage. (Hartford’s Insurance policies issued through Hill & Usher also offer this.)

Because I knew how to handle the case and felt confident of ultimate victory, it didn’t occur to me to report it to the Trust. However, after the default judgment was rendered against me, I thought that reporting it might be a good idea. Unfortunately for me, the Trust has a clause in their policy that states that the claim must be reported before going to court. I had an opposing view (buttressed by insurance law) which they did not accept – so no coverage was extended to me. (Had I lost the case, I had an attorney ready to do battle with them, but that’s another story.)

Going forward, I recommend that anyone who is a PPA member should immediately report any claim made against them regardless of whether they think they’ll ultimately prevail. They also have attorneys who will assist in the preparation of the claim. No point in paying out any money when you don’t have to. If you’re not a PPA member, securing coverage through the Trust is definitely a benefit that merits joining.

With regard to the actual court date that I missed, instead of just not showing up, I should have sent someone to stand up on my behalf and say that I couldn’t make it. Yes, I would have lost the case, but not by default. Overturning a default judgment is much more difficult than appealing an award. (In the end it didn’t really matter because the Superior Court would have taken my case regardless of the reason.)

Please keep in mind that the small claim courts in different states all use different rules. Be sure to find out how the process works in your state before you make any assumptions.

One more thing, a couple of people have used this case as justification for not shooting weddings. Well, commercial clients present their own set of problems. The last time I was in court (nearly 20 years ago) was to sue a company who refused to pay me for work I had done. I won that one too but it was still a PIA. Come to think of it, my all time worst client was a portrait client however, that’s a story for another day. Let’s just say that regardless of what side of the business you’re in, there’s sure to be challenges. My wish for all of us is that they’re few and far between!

John

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About johnmireles

Photographer, writer, thinker, climber, outrigger canoeist, bad guitar player and even worse singer.
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7 Responses to Sued by an Unhappy Client: What I Would Have Done Differently

  1. Mike says:

    Thanks for this useful follow up, John. It’s helpful to know that such cases should be reported to the Indemnification Trust before going to court.

  2. Thanks for responding to my comment. Very helpful. Obviously, I hope I never have to use that information!!

  3. Richard says:

    It’s a bit like driving John, you do it long enough and eventually there’s going to be a ding. Thanks for sharing all this it was good info. Hopefully won’t need it anytime soon, but still good to know it’s out there.

  4. AndreaM says:

    I wonder if you considered making the album for the client? I realize you said she declined the album after the trial and presumably she want ahead with her Picasa album. But here’s the thing. In 15 years, maybe even way sooner, her Picasa album is going to fade. Colors will shift and the edges of the pages will start to yellow. If all goes well in her marriage, she will have 2 teenagers, a toddler and a new job by then. No time to make a new album even if she CAN find the original files! Right now you could offer the completed professional album, perhaps, for her parents. And someday in the future she will belatedly appreciate the value you have provided.

  5. Super important!!! if you get served you HAVE to show up, and present your case. As you now know, not showing up results in a default judgement and that sucks.

    I got caught up in a soul destroying litigation that lasted 5 years from my old business.We won, but the cost to my health, family, work, friends, was beyond measure. I didn’t ask for that fight, but I ended it. I was sued for $2,000,000. I was right, they were wrong, but they used the lawsuit as a means of extorting a settlement. I refused . Eventually, they said “give us $30,000 and we’ll leave you alone.” I told them to stuff it because I refused to admit to wrong doing. Thus the battle began…

    Rules of the road in lawsuits:
    Do everything possible to avoid the lawsuit.
    If you can’t avoid it then understand it is trench warfare, it’s a knife fight in a dark alley,and you have to destroy your opponent before they do it you- the legal system is NOT about truth and justice, it is about who can wield the biggest stick. Get a big stick and wield it heavily. It is war, and once war is started, you must fight with unrestrained vigor or you will lose. The Germans and Japenese did not have an ephinany and say ” hey, this world conqest thing is a loser, let’s stop: They stopped only when they were crushed. Understand it will be expensive, and you must weigh the costs in legal bills vs the proposed settlement and make an informed decsion. Note: often times your lawyer doesn’t give a shit if you win or lose, as long as you pay. lawyers will often throw their clients under a bus in order to settle and get paid. I was very fortunate to have an honest and ethical attorney, but only after i fired the orignal attorney who seemed determined to stretch this out for extra billable hours.

    Sorry to sound so cynical, but had I lost that suit I would have been wiped out, my family on the street. The DB plantiff knew they had no case, they manufactured evidence, defamed me, libeled me and the predatory lawyers were happy to comply all in the name of running up billable hours..

  6. Kelly says:

    Hi John, thanks for bringing up the E&O policy information. Many people can’t see the need of professional liability until a claim comes up. I work for an insurance agency that only does professional liability. We hear it everyday. Many assume their Business Owners policy will protect them but it isnt the case. We hate for anyone to learn the hard way because claims and lawsuits can be expensive and hurt a company’s longevity.

    Although I am sure this was not a pleasant time for you, you are being a great example to those who might not see the value of securing E&O and might make them think twice.

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