Orkin Exterminating Co., Inc. v. Donavan
| Citation | 519 So.2d 1330 |
| Parties | ORKIN EXTERMINATING COMPANY, INC. v. Dora DONAVAN. 85-962. |
| Decision Date | 29 January 1988 |
| Court | Alabama Supreme Court |
Christopher G. Hume III, of Johnston, Hume & Johnston, Mobile, for appellant.
Richard E. Browning, of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellee.
R.B. and Dora Donavan filed suit against Orkin Exterminating Company on September 15, 1983, for damage resulting from an alleged breach of contract for protection of their home against subterranean termites. The complaint against Orkin sought relief on several grounds, of which only the claims of negligent performance of contractual duties, and breach of contract, were submitted to the jury. The jury returned a verdict against Orkin in the amount of $60,000. Its motion for new trial, JNOV, and remittur were denied and this appeal ensued.
R.B. Donavan, who died during the pendency of this action, built the house that is the subject of this suit, in 1951. In 1978 the Donavans entered into a subterranean termite agreement with Orkin that included a "lifetime repair guarantee." That guarantee provided as follows:
The contract provided for an initial treatment fee of $425 with a $50 annual renewal fee. The Donavans paid these sums and were satisfied with Orkin's services until early 1983.
In January or February of 1983, Mrs. Donavan discovered that termites had apparently eaten some papers that she had stored in her bedroom closet. Upon further inspection, she found what she suspected was termite damage on the wall next to her refrigerator and in the adjacent ceiling. An Orkin representative inspected these areas and assured her that it was just water damage.
On May 14, 1983, Mrs. Donavan found that termites had swarmed in her home. The insects were so dense in the kitchen that they covered the entire stove. Mrs. Donavan again called Orkin, and John Cunningham, the Mobile branch manager, came out to inspect her home in Citronelle. Cunningham acknowledged the presence of live termites and identified several areas of termite damage. He advised the Donavans to hire a contractor in order to get an estimate on the amount of the damage. He also warned the Donavans not to explore for hidden termite damage that he had not yet detected. It was his contention from the outset of discovery of termite damage that he or his agent was required to be present to inspect for live termites during each and every repair to ascertain that the damage was not a preexisting condition. This condition, which is nowhere expressed within the four corners of the written guarantee, was frustrated by Cunningham's pattern of failing to attend to this obligation.
The Donavans hired Johnny Tucker to prepare an estimate of the damage and to conduct the necessary repairs. His initial estimate was in the neighborhood of $500 but it quickly escalated, and the final total was $15,618.56. It is undisputed that termites were found in every room of the house except for the two bathrooms. Repair of the termite damage necessitated removal of over half of the interior walls. It appears from the record that as each repair was made more damage was uncovered. Repairing the damage took over three months and necessitated that the Donovans move out of the house in the interim. After Orkin refused to honor its obligation, the Donavans paid $10,057.02 for materials and labor out of their own funds and Mr. Donavan was forced to do much of the work himself.
On May 28, 1983, while much of the termite damage was still being uncovered, Orkin sent an exterminator out to re-treat the Donavans' home. The Donavans refused entry to the Orkin man, and the house went without re-treatment until June 2. The Donovans claim they wanted to ascertain the extent of the damage before Orkin destroyed the evidence of infestation of live termites. On June 2, 1983, the Donavans had their home inspected by Hilliard Brackin from the State Department of Agriculture and Industries. He conducted a structural pest inspection of the Donavans' house to ascertain the presence of live termites in the house and to assess the extent of damage.
Brackin, who testified on behalf of the Donavans in an expert capacity, said that his initial inspection on June 2 revealed that the house had not been properly treated for termites. He found that the holes drilled in the slab, which are made in order for the termite treatment to affect the soil under the house, were not deep enough to penetrate the slab. In essence, Orkin drilled holes sufficient to penetrate into the foundation but not through it. Brackin also found areas in the foundation where no holes had been drilled and there had presumedly been no attempt to treat for termite protection. He also found a patio and a porch that abutted the main slab that were, likewise, improperly treated by Orkin.
After Brackin completed his June 2 inspection, he gave Orkin instructions regarding the proper method of re-treatment for the Donavans' home. Brackin inspected the Donavans' home again on June 13 and found that the Orkin re-treatment applied on June 2 was, likewise, ineffective. His inspection revealed that Orkin had again drilled insufficient holes for treatment of the house's foundation. He also ascertained the continued presence of live termites during this inspection.
On June 22 Brackin inspected the Donavans' home for the third time, only to find that Orkin's application of termite treatment was incomplete and improperly applied. On July 11 Brackin made his final inspection of the Donavan home. This time he found that Orkin had properly drilled and treated...
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IN RE SHARPE
...delivery of utilities thereto, where the breach affected habitability.' See, e.g., Epperson, 581 So.2d at 454; Orkin Exterminating Co. v. Donavan, 519 So.2d 1330 (Ala.1988); Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297 (Ala.1986); Alabama Power Co. v. Harmon, 483 So.2d 386 (Ala.1986).......
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Brown v. State Farm Fire & Cas. Co.
...of utilities thereto, where the breach affected habitability." See, e.g. , Epperson , 581 So.2d at 454 ; Orkin Exterminating Co. v. Donavan , 519 So.2d 1330 (Ala. 1988) ; Lawler Mobile Homes, Inc. v. Tarver , 492 So.2d 297 (Ala. 1986) ; Alabama Power Co. v. Harmon , 483 So.2d 386 (Ala. 1986......
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Tlig Maint. Servs., Inc. v. Fialkowski
...delivery of utilities thereto, where the breach affected habitability." See, e.g., Epperson, 581 So.2d at 454 ; Orkin Exterminating Co. v. Donavan, 519 So.2d 1330 (Ala.1988) ; Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d 297 (Ala.1986) ; Alabama Power Co. v. Harmon, 483 So.2d 386 (Ala.198......
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