Orkin Exterminating Co., Inc. v. Montagano, 76-2537
| Decision Date | 23 May 1978 |
| Docket Number | No. 76-2537,76-2537 |
| Citation | 359 So.2d 512 |
| Parties | ORKIN EXTERMINATING COMPANY, INC., a Foreign Corporation, Appellant, v. Michael M. MONTAGANO, Appellee. |
| Court | Florida District Court of Appeals |
Jonathan J. Davis of Walton, Lantaff, Schroeder & Carson, Fort Lauderdale, for appellant.
H. C. Feige of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellee.
This case concerns an exculpatory clause in a termite agreement limiting liability to re-treatment only. The trial judge denied a motion to dismiss for failure to state a cause of action and allowed the case to go to the jury, also denying motions for a directed verdict. The jury award to the house owner was $9,554.00 for termite damage caused because of defective treatment. We affirm.
It is inescapable that Florida courts recognize and uphold, not only contracts with exculpatory clauses which limit liability, but also those which exempt liability altogether. Middleton v. Lomaskin, 266 So.2d 678 (Fla. 3d DCA 1972); Kinkaid v. Avis Rent-A-Car Systems, 281 So.2d 223 (Fla. 4th DCA 1973). Furthermore, in Orkin Exterminating Company of South Florida v. Clark, 253 So.2d 884 (Fla. 3d DCA 1971), the court upheld a clause in a termite agreement limiting the termite company's liability to $5,000, even though the damage had been caused by inadequate treatment by the termite company. However, in this last cited case, possible ambiguity in the wording of the terms of the agreement was not an issue discussed in the court's opinion, whereas all the other cases cited include language such as, for example:
"Generally, exculpatory contracts which attempt to relieve a party of his own negligence are not looked upon with favor; however, such contracts have been held valid and enforceable in Florida, where such intention was made clear and unequivocal in such contract."
Accordingly, to be enforceable, the contract must be clear and unequivocal on the liability question and we do not think the instant agreement passes the test of clarity or unequivocation.
On the first page of the termite agreement, now before us, the following is set forth:
'ORKIN is to issue the type of guaranty as checked below:
( ) Lifetime Control and Repair(LR) ( ) None
(x) Lifetime Control(LC) ( ) Pretreat(PR)'
The box styled "Lifetime Control" was clearly checked off.
Further down, on the same first page, the following sentence appears:
"This agreement shall be comprised of this Contract, the General Terms and Conditions as they appear on the reverse side, the accompanying Graph and Specifications, and, upon issuance, the Guaranty."
Turning to the said reverse side of the agreement, we discover that the first two paragraphs there appearing, are set forth in large bold face block capital letters 1 in the same chronology that follows:
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In re Pilgrim's Pride Corp.
...damages may be limited or excluded unless the limitation or exclusion is unconscionable ...”)); Orkin Exterminating Co. v. Montagano, 359 So.2d 512 (Fla.Dist.Ct.App.1978) (citing Middleton v. Lomaskin, 266 So.2d 678 (Fla.Dist.Ct.App.1972)) (stating that “[i]t is inescapable that Florida cou......
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...exculpatory clauses which relieve a party of his own negligence are generally looked upon with disfavor, Orkin Exterminating Co., Inc. v. Montagano, 359 So.2d 512 (Fla. 4th DCA 1978), such clauses have been upheld where the intent to avoid liability is clear As for the negligence count, Sha......
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In re Pilgrim's Pride Corp., Case No. 08-45664 (DML)
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