TERMITE COMPANIES
There are many difficult
and thorny legal issues relating
to the pursuit of termite
companies. Invariably, the
relationship between a property
owner and a termite company
revolves around a written
contract, which is in fact
required in many states.
All too often, national companies
included, the termite contracts
and the termite guarantees
issued with the contracts
contain very unfair disclaimers
designed to absolve the termite
companies from any responsibility
or liability for damage to
property. Frequently, the
disclaimers are not only
unconscionable, but may also
violate specific state law.
For example, in the Westminster
v. Orkin, 285 B.R. 38 (Bankr.
M.D. Fla. 2002) case, the
court held that Orkin’s
form disclaimers buried on
the backs of its contracts
violate Florida ’s
Structural Pest Control Act.
Additionally, very often the termite contracts certain arbitration provisions, meaning that the property owners are deprived of a right to a jury trial and must instead have their dispute decided by an arbitration panel. However, simply because there is an arbitration clause does not mean that a property owner is necessarily deprived of a jury trial. Often, termite control companies use unconscionable and unfair arbitration clauses which illegally deprive their customers of certain rights and remedies, and this may invalidate the arbitration agreement.
Beyond the contract questions,
there are many other legal
issues too numerous to fully
recount. However, in our
experience, we have found
that termite companies, sadly,
often cheat and deceive their
customers. We therefore spend
a tremendous amount of time
and litigation effort establishing
violations of state consumer
protection laws which prohibit
deceptive and unfair trade
practices, which we have
demonstrated in many of our
cases. We also spend considerable
time establishing fraud and
criminal racketeering allegations
which can lead to punitive
and treble damages. For example,
in the case of Orkin
Exterminating v. Jeter, 832 So. 2d 25 (
Ala. 2001) , the jury awarded
$80 million dollars in punitive
damages against Orkin because
of the outrageous cheating
of Ms. Jeter, although the
award was later reduced on
appeal.
INSURANCE CLAIMS
The most important legal
issues relating to claims
against property owners’ insurance
companies relate to the meaning
and interpretation of the
term “collapse” as
it is used and
applied in insurance policies.
CLF has been very successful
in proving “collapse” for
clients who have suffered
termite property damage.
In fact, CLF obtained the
first and only federal ruling
in Florida favorably interpreting
the term “collapse” in
Sandalwood
Condominium v. Allstate Insurance
Co., 294
F. Supp. 2d 1315 (MD Fla
2003). CLF later settled
this termite damage collapse
claim for $2.25 million dollars.
Beyond the core collapse
issue, there are additionally
many technical policy defenses
aggressively raised by insurance
companies attempting to evade
their responsibilities. CLF
is well equipped and experienced
to deal with all of those
issues, including the often
invoked but rarely successful “late
notice” defense. In
our experience, it is never
too late to explore insurance
coverage and put carriers
on notice, although obviously,
the sooner the better.
