For many exterminators, failure to eliminate household pests has been seen by some courts as a breach of contract. In most circumstances, this failure to eliminate pests is usually caused by some form of negligence by the exterminator.
A breach of contract may arise when a party to a valid contract has failed to fulfill their side of the agreement.
For example, the terms of a contract guide the parties in what they must do and how they should do it to keep their promise. If a party does not do what the contract requires them to do, the non-breaching party will be entitled to legal action and file a lawsuit against them in court.
A breach of contract can appear as either a partial or a complete breach. A court will also consider whether the breach was substantial or only a minor one. This will help the court determine what damages the breaching party should have to pay.
Negligence is the legal theory that permits injured individuals to recover for the carelessness of others. A person is negligent if they are careless given the situation’s circumstances.
What Must a Homeowner Show to Prove an Exterminator Breached Their Contract?
Although states differ on what precisely demonstrates an exterminator’s breach of contract, most cases of breach of a pest control contract follow a common theme:
- The exterminator originally promises to eliminate all pests through advertising or a direct warranty when the contract is signed.
- After completing the work, the exterminator’s house inspection suggests that all pests have been eliminated.
- Some time passes, usually within a year, after which pests reappear.
- A successive inspection by a third party shows some defects in the original exterminator’s work, leading to the resumed pest infestation.
- The homeowner contacts the original exterminator, who either fails to remedy the infestation or refuses to honor the original guarantee altogether.
It is essential to note that most pest control cases deal with a specific infestation (e.g., roaches, termites, etc.). Thus, it is unlikely that a breach of contract will be found unless the infestation relates to one of the pests documented in the extermination contract.
What Kind of Damages Can Be Recovered from an Exterminator?
Along with the expense of the pest control itself, a homeowner may also be permitted to other damages. This can include hiring another exterminator to finish the assignment or the homeowner’s fees to remedy the infestation themselves. In the case of termites, homeowners can even recover for any structural deterioration to the house. Some courts even award punitive damages for exterminators who do exceptionally haphazard work.
Many exterminators try to limit damages by including liquidated damages provisions in their contracts. Courts are mixed as to whether such conditions are valid. Nevertheless, most courts agree that exterminators cannot hide their damages.
Liquidated damages are the number of monetary damages that contracting parties agree will be produced by the breaching party if the contract is breached. This amount is written into the contract in a piece known as a liquidated damages clause. A liquidated damages clause sounds like it can be a penalty for a breach of contract, but it is not intended to be. A penalty is meant to be a punishment in case of a breach. On the other hand, liquidated damages are designed to protect both parties who have entered the contract if there was some breach.
Liquidated damages are permitted in a contract only if:
- The injury or amount of damages is pending
- The amount of liquidated damages is reasonable and is considered as anticipated harm
- The loss of the number of damages is difficult to ascertain
- There is no other remedy to cover the damages
- The damages are served as a protection rather than a penalty
Liquidated damages clauses are not permitted if:
- The damages being requested are for an excessive amount (for instance, if the liquidated damages stated are disproportionate to the loss or if the sum significantly surpasses a reasonable estimate of the actual damages)
- The liquidated damages are intended to punish a breaching party rather than compensate the non-breaching party for losses
- The default was just a mere delay in payment
- Even if the contract allows for liquidated damages, the parties to the contract need to confirm that the clause observes the various requirements under contract laws. As with any contract clause or agreement, liquidated damages clauses should be prepared and checked by a qualified contracts attorney familiar with the area’s rules.
Courts will often implement liquidated damages clauses if the damages for breach of the contract will be hard to gauge. Nevertheless, a court will not enforce a liquidated damages clause if the clause is unjust or awards an exorbitant amount of money. Likewise, a court will not award liquidated damages if the contract is based on fraud or error. If a court decides that such a clause is unenforceable, the clause is invalid, and the non-breaching party may sue for other contract remedies.
Anytime damages are difficult to predict, and it is unattainable to calculate how much a breached contract would cost, the parties would agree to set a fixed amount of damages in the contract. Hence, if one party does breach the contract, the other party can collect that amount of damages previously agreed upon. The court will commonly enforce the liquidated damages clause if the amount is reasonable and the damages are difficult to establish.
Before filing a breach of contract claim, it is essential to examine the contract for any clauses stating whether a lawsuit may be brought.
For example, the contract terms may only let the parties enter mediation or arbitration to resolve a problem. There also may be a time limit or method that the parties have to observe before they can file a lawsuit.
Next, a party should also check if specific details are present in the case.
For instance, most breach of contract claims typically involve having to prove the following four factors:
- That they have entered into an actual contract, and the contract is valid according to contract laws;
- The party must be able to offer proof that they upheld their end of the bargain despite the other party not doing their part;
- The party must also demonstrate that the breach amounted to a material or substantial violation of the contract terms. Minor or technical mistakes in a contract will typically not qualify for breach of contract claims; and
- Lastly, the party must show that the losses they suffered were caused by the breach and can be estimated reasonably.
After both of these initial steps have been satisfied, and if it is possible, the party should then file a breach of contract claim with the appropriate court. Where, when, and how the contract can be filed will depend on the rules of civil procedure, relevant state laws, and the court rules in which it is being filed.
How Can a Lawyer Help Me?
If you contracted with an exterminator who failed to eradicate pests in your house, you should contact a contract attorney instantly to help you assert your rights. A pest control lawyer can not only determine whether you have a good case against an exterminator but also inform you of any potential damages you may be able to collect.
A pest control lawyer can also determine whether a liquidated damages provision is contained in your extermination contract.
