466 N.E.2d 55 (Ind.App. 3 Dist. 1984), 3-583A160, Orkin Exterminating Co., Inc. v. Walters

Docket Nº:3-583A160.
Citation:466 N.E.2d 55
Party Name:ORKIN EXTERMINATING COMPANY, INC., Defendant-Appellant, v. Edna WALTERS, Plaintiff-Appellee.
Case Date:July 24, 1984
Court:Court of Appeals of Indiana

Page 55

466 N.E.2d 55 (Ind.App. 3 Dist. 1984)



Edna WALTERS, Plaintiff-Appellee.

No. 3-583A160.

Court of Appeals of Indiana, Third District.

July 24, 1984

Page 56

Anthony S. Benton, John C. Duffey, Stuart & Branigin, Lafayette, for defendant-appellant.

Patricia L. Engels, Lake Village, for plaintiff-appellee.


In March 1976 Edna Walters noticed flying insects in her house and contacted Orkin Exterminating Co. (Orkin). Orkin's pest control department first inspected Walters' home. They discovered active infestations of cockroaches, silverfish, mice, carpet beetles and termites. They treated for the above pests except termites and suggested that Walters contact Orkin's termite department which she subsequently did. Upon subsequent inspection by Orkin's termite department and an explanation of Orkin's termite treatment, Walters signed a "Subterranean Termite Agreement" which provided for an initial treatment for $341 and Orkin's "Continuous Protection Guarantee" for an annual fee of $44.

On April 16, 1976 Orkin treated Walters' house for termites. On the same day Walters received the "Lifetime Re-treatment Guarantee" which guaranteed additional treatments at no cost if termites reappeared during the guarantee period, expressly limited Orkin's liability to re-treatment only, and contained an express waiver by the buyer for termite damage to the structure or its contents.

Later, Walters discovered termite damage and Orkin re-treated her house in 1979 and 1980. After termite damage continued, Walters brought this claim for negligent breach of contract against Orkin in November 1980. 1 After a bench trial, the trial court entered judgment for Walters and against Orkin. The court awarded $40,000 for damage to the house, $6,000 for damage to personal property and $8,000 for "discomfort, inconvenience, mental stress and aggravation" for a total of $54,000. Orkin subsequently perfected this appeal.

Orkin requested special findings of fact under Indiana Rules of Procedure, Trial Rule 52(A). The scope of review for special findings is well settled: The appellate court may not affirm the trial court's judgment on any ground which the evidence supports but must determine if the specific findings are adequate to support the trial court's decision. Shrum v. Dalton (1982), Ind.App., 442 N.E.2d 366, 372.

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The trial court made the following findings of fact and conclusions of law:


"1. This Court has jurisdiction of the subject matter and the parties in this matter.

2. A contract was entered into between the parties on or about March 11, 1976, establishing duties and rights of the parties with regard to treatment and protection of plaintiff's house from said termites.

3. The Orkin Retail Installment Contract, Number 41-945-492, was attached to the inside back cover of a printed booklet.

4. Said contract between the parties was continuous through annual renewal from March 11, 1976 through December 31, 1980.

5. During such time, Plaintiff did substantially comply with the terms of said contract.

6. Plaintiff did understand that her house would be protected continuously through annual renewal from termite damage by Defendants.

7. Defendant completed initial treatment of the house on April 16, 1976. At that time, no assessment of termite damages was made, though Defendant did note such locations by "X" on inspection sheet.

8. Defendant retreated said house on June 9, 1979, and again on September 20, 1980.

9. Defendant did fail to comply with such duties to protect with regard to:

(a) Proper inspection to determine the most effective treatment method;

(b) proper treatment as directed by State of Indiana Termite Control Enforcement Policy;

(c) proper application of Orkin termiticide as directed by the label instructions for slab on ground construction.

10. Fire to said house occurred in December, 1980.

11. Inspection of said house and testimony disclosed extensive infestation of said house which resulted in damage to said house and the entire house is generally in bad condition, said fire permitting inspection of load bearing timber.

12. Defendant's failure to properly inspect and treat for protection from said termites did not eliminate termites from said property, and was the proximate cause of the damage to property sustained by Plaintiff from termite damage.


1. Surrounding circumstances are here considered in determining the intention of the parties to the contract which will advance its beneficial purpose.

2. Ambiguous language in a contract shall be construed most strongly against the person who prepares it.

3. The Court shall consider the nature of the agreement, together with all the facts and circumstances leading to the execution of the contract, the relation of the parties, the nature and situation of the subject matter and the apparent purpose of making the contract.

4. Defendant exterminator who undertakes to accomplish such protection, has a duty to do everything according to custom of the trade requirements of State to accomplish that protection and in methods set forth as proper.

5. Where the damage results from breach of duty and would not have occurred but for Defendant's negligent performance, Defendant's negligence constitutes malfeasance and Plaintiff may sue in tort.

6. Where Defendant performs in such a defective way as to amount to...

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