Preventing Lawsuits

It’s an unfortunate sign of the times that bed bug lawsuits against pest management professionals have been steadily increasing over the last few years. The lawsuits come from a variety of disgruntled customers, including homeowners, business owners, hotels, etc.

What’s more, bed bug litigation has become something of a growth industry for the legal community. It is so much so that some law firms base their practices entirely on claims that clients have been “attacked” by, and as a result suffered irreparable physical and psychological damage from, bed bugs.

I am not suggesting that these lawsuits are without merit, or that those who are engaged in them are involved in misrepresentation or fraud. On the contrary. Clearly, a number of people have had bad experiences; but to assume that the bed bugs are infesting and “assaulting” hundreds of people across the nation is greatly exaggerated.

WHAT TO EXPECT. Among the many problems facing pest management professionals (PMPs) these days are unrealistic expectations on the part of customers. In fact, a failure to eradicate bed bugs from homes (or offices) is often regarded by many customers (and, unfortunately, some courts too) as a breach of contract. Customers also tend to regard a PMP’s inability to clear a dwelling or office of these pests as negligence.

Every case is different, of course, but they all tend to have certain elements in common.

For instance, they may claim that you and/or your team examined the property and declared it free of bugs. Or, they may claim that you were negligent because the bed bugs reappeared. Again, the owner might call in another pest management company, which then claims that your work was shoddy or incomplete. The plaintiff also might contend that you didn’t live up to the promises you made in your advertising or warranty.

WHAT YOU NEED. PMPs can be sued for any number of reasons, including negligence, breach of the warranty of habitability, breach of contract, private nuisance and quite probably the intentional infliction of emotional distress.

A PMP’s first line of protection is how well their work is documented. If you can present incontrovertible proof that you 1) fulfilled the terms of your contract, 2) ensured that the property in question was thoroughly checked after treatment and found to be clear of bed bugs, 3) lived up to the “promises” made in your advertising and/or written guarantee and 4) provided satisfactory follow-up, then you are on your way to winning your case.

But there’s more, of course. In order to present a persuasive case, you should be prepared to present legible service reports, with the correct address and date(s) and the names of the technicians performing the job. Those service reports should be as detailed as possible and should specify:

• Which rooms and areas of the property were infested and how seriously?
• Were there troublesome issues or safety concerns?
• What actions — specifically and in detail — did the pest control company take to tackle the infestation?
• Which chemicals and/or pesticides were used, where and in what quantity?
• Was the customer cooperative?
• What follow-up actions were agreed to?
• Did the customer commit to certain after-treatment actions?

PMPs also need to ensure their records indicate whether or not the customer followed their advice and other problems encountered during the job.

Lastly, customers must sign a contract beforehand that details the work to be done, why, how long it will take and how much it will cost. Once the job is complete, ensure that the technician gets a written sign-off from the customer, acknowledging the work was done and that it was completed to the customer’s satisfaction.

WHAT WILL BE CLAIMED? Even a cursory review of the legal record seems to indicate that most bed bug lawsuits include claims for medical bills, emotional distress, and pain and suffering. The problem, at least from the plaintiff’s point of view, is that the vast majority of bed bug “attacks” don’t really end up costing a great deal in medical expenses. In fact, most doctors will say that bed bug bites are easy to treat using antihistamines or topical ointments, both of which are available without a prescription.

That’s why a plaintiff’s attorney probably will steer clear of the financial aspects of the case and claim that their client has suffered psychologically and has experienced emotional distress and suffering. It is very difficult to prove such claims with any degree of certainty. “Emotional distress” and “suffering” are intangible states that cannot be established in the way that, say, the loss of a limb or disfigurement can.

That’s why a plaintiff’s attorney probably will steer clear of the financial aspects of the case and claim that their client has suffered psychologically and has experienced emotional distress and suffering.

In all likelihood, the plaintiff’s attorney will take another approach. It will all come down to appearances: your company’s conduct, the way your staff handled the complaint and how the company followed up afterwards. The case also will hinge on whether or not you had bed bug protocols/best practices in place. That’s why documentation is crucial.

GOING FORWARD. First, never overpromise; instead, be modest in your claims and don’t exaggerate your control expertise. Be careful what you say in your bed bug warranties. Most pest control companies only guarantee the services outlined in their service contracts; PMPs never should promise that they will eradicate bed bugs.

Second, make sure customers have reasonable expectations about what you can achieve regarding bed bug control. Eradicating bed bugs is extremely difficult. Outline your service protocols and explain that follow-up visits may well be necessary. Communication is key!

Third, be certain that your company’s salespeople, technicians and office staff follow the same rules and guidelines. This ensures your customers hear the same message from everyone.