Tips for Staying Out of the Courtroom

Editor’s Note: This article is the first in a series focusing on risk management practices for the pest management industry. The articles are based on presentations from the 2016 PestSure Safety and Loss Prevention Conference where PMPs gathered to hear the latest strategies for protecting their employees, customers and businesses from a variety of threats. In business for more than 30 years, PestSure is a nationwide association providing insurance and risk management services that is owned and operated by pest management professionals.

Everyone likes to watch courtroom dramas unfold on television but in real life no one wants to be cast in the starring role as the wrongfully charged defendant.

Staying out of the courtroom is also a priority for pest management professionals that, like other service industries, carry a higher risk of litigation simply because of the nature of their work.

Anytime you have multiple service vehicles being driven around town, service technicians and inspectors working inside a customer’s home or business, and an inventory of chemicals on trucks, there is always a risk something could go wrong.

At the 2016 PestSure Safety and Loss Prevention Conference, attorney Greg Crosslin of Crosslin & Associates, shared his best practices with PMPs on how to steer clear of the courtroom.

“Pest management professionals are in the business of risk management because they are there to protect homes, families and food,” says Crosslin. “And the bullseye is on you quickly if something happens.”

Crosslin says a pest management company’s best defense against a lawsuit is well-trained technicians and inspectors.

“Owners and managers must not look at training as a chore but rather an investment that could save them money in the event of a lawsuit,” says Crosslin. “Emphasis is needed on making the initial technician training universal to all areas of the business.”

Why is training so important? According to Crosslin, a lawsuit can turn one way or the other depending on the actions of the technician or inspector.

A well-trained technician will be knowledgeable about the types of pests he or she is treating for and thus will make the proper product selection, and follow label directions and usage rates.

Crosslin says technology is helping to facilitate easier access to training resources but PMPs, especially smaller operations, should explore resources —often free — that are available through suppliers, distributors and state extension services.

“You don’t have to be a bad company to be sued,” says Crosslin. “You can be a good company and still lose if you are not dedicating resources to training.”

DOCUMENTATION IS KING. If you want to remember something, write it down. This old adage has been preached by teachers for years and it applies to the pest management industry as well.

“If you don’t have it documented, in the eyes of the law you didn’t do it, even if you did,” says Crosslin. “No judge, jury or regulator will believe you without proper documentation.”

Pest management professionals are used to keeping detailed client records and that need isn’t going away anytime soon, especially with commercial accounts where mandates from the Food Safety Modernization Act require more extensive documentation procedures.

Crosslin says readily-accessible docu-ments can make a legal issue go away and with companies having the ability to scan, save and organize reams of documents that would have filled multiple file cabinets 15 years ago, there is no excuse for missing documentation.

Setting and consistently following policies and procedures, and docu-menting them, is another key element in protecting your company. From how you answer the phone to human resource policies, Crosslin says if it is important enough to run your business, it is important enough to document.

Crosslin points to an example of a pest control company failing to keep accurate, updated I-9 employment eligibility verification records. An unhappy cus-tomer called the immigration service and when the paperwork was not in order for multiple employees, the company was levied a $25,000 fine plus lost time and revenue from the employees.

In the commercial sector, due to the increasing complexity of contracts and a trend with commercial clients wanting PMPs to sign their service contracts, especially in the food processing, pharmaceutical and high-tech fields, Crosslin recommends PMPs have their contracts reviewed by a lawyer to ensure there is a complete understanding of what the client is asking for.

I’M BEING SUED, NOW WHAT? As Crosslin stated earlier in this article, you can be a good company and still get sued. What do you do when you are facing legal action?

If you have followed good training and documentation policies the first step is to pull the necessary documents related to the case and provide them to your legal counsel and/or insurance company.

Crosslin encourages PMPs to use their insurance carrier as a resource and sounding board if they find themselves involved in a legal matter. “A call to your insurance company will not raise your premium,” adds Crosslin.

Trying to fix the problem on your own, even though it appears responsive to the customer, can also lead to issues and actually make the problem worse.

“Getting a second set of eyes on the situation is never a bad thing,” says Crosslin. “There is value in having your insurance carrier look at the issue and in some cases a PMP could violate its coverage if they settle without consulting with their insurer.”

The author is a communications and marketing consultant with B Communications. He can be reached at jfenner@b-communications.com or by calling 440/525-1840

What’s In A Name?

The answer to that question is plenty, especially if it is the incorrect name. In his session at the 2016 PestSure Safety and Loss Prevention Conference, attorney Greg Crosslin shared a story where one incorrect word caused a significant headache for one pest management company.

A termite inspector reviewed his route for the day and noticed he had an inspection for a real estate transfer at 117 Elm Circle. He went to the address and found no evidence of termites or damage and wrote up his report to reflect his findings. Case closed? Not exactly.

It turned out that a clerical error in the company’s computer files incorrectly listed the customer’s street name. The house number, 117, was correct but the street was Elm Lane — not Circle.

The inspector unknowingly conducted an inspection of the wrong house and when termite damage was found in the home he was supposed to have inspected, the company ended up in court. The company — through its insurance carrier — ended up paying damages due to its inspector going to the wrong address, and the title company that ordered the inspection and the realtor also had to pay.

The lesson: It only takes one incorrect piece of information in a report or customer profile to open the door for a costly mistake.

Updated, accurate records are a pest management professional’s best friend when it comes to litigation and it pays to double check the accuracy of the data your technicians, inspectors and office staff are collecting and using to service clients.

A Picture Is Worth A Thousand….

If you finished the sentence from the headline with “words” you wouldn’t be wrong but if you said “dollars” you would also be correct.

Any insurance adjuster, investigative journalist or savvy pest management professional will tell you a photo is worth its weight in gold when it comes to capturing what is real and what isn’t.

In a case Greg Crosslin handled, a pest management company found itself on the wrong side of a protracted legal fight where a photo could have ended the process much earlier.

During one of the Gulf Coast region’s powerful hurricanes a garage was destroyed and the homeowner decided to rebuild. They completely tore the cement slab out of the ground and rebuilt on the same spot but enlarged the garage slightly to make it longer and wider.

In the process of rebuilding, however, the original liquid termiticide barrier was compromised and subterranean termites infested the new structure causing damage and prompting the homeowner to pursue legal action against the pest control company.

Because there were no photos of the original garage showing the size and location of the structure and cement slab, there was no way to prove the termite barrier was disturbed.

“Once we discovered that the homeowner had torn out the slab and gone with another pest control company we proceeded with our recovery efforts as they had the wrong company and we didn’t owe anything,” says Crosslin.

The company appealed and eventually won via summary judgment but it took two years and more than $50,000 to win back a large amount but not all of the money they had paid out.

“Once the court saw that another company treated the new structure our client was released, but a photo of the damaged area at the time of the damage could have saved a great deal of time, expense and agony,” adds Crosslin.

The lesson: Taking photographs of structural damage, pest-conducive conditions or the structure/property itself are always helpful to accurately portraying the pest-health of a structure.