Sellew v. Terminix Int'l Co., Case No.: 2:17-cv-01926-RDP
| Decision Date | 06 March 2020 |
| Docket Number | Case No.: 2:17-cv-01926-RDP |
| Parties | BOBBY SELLEW, Plaintiff, v. THE TERMINIX INTERNATIONAL CO., LP, et al., Defendants. |
| Court | U.S. District Court — Northern District of Alabama |
This case involves a dispute between a home owner, Bobby Sellew ("Plaintiff"), and a professional-services company, The Terminix International Company and Terminix International Inc. (collectively, "Terminix" or "Defendant"). Plaintiff advances six claims against Terminix: (1) Fraudulent Misrepresentation, Fraudulent Suppression, and Promissory Fraud; (2) Negligence, Recklessness, and Negligence Per Se; (3) Negligent Hiring, Training, Supervision, and Retention; (4) Breach of Contract; (5) Equitable Relief, including Unjust Enrichment; and (6) Equitable Relief Pursuant to the "Made-Whole" Doctrine. (See generally id.). Defendant has moved for summary judgment on Counts One, Two, Three, Five, and Six of Plaintiff's Amended Complaint and partial summary judgment on Count Four. (Doc. # 54). Terminix argues that, under Alabama law, Plaintiff cannot maintain any tort claim or claim for equitable relief. (Id. at 4). Defendant also argues that any remedy Plaintiff seeks on her breach of contract claim would be barred (or significantly limited) by the express terms of the contract. (Id. at 23).
Defendants' Motion for Partial Summary Judgment has been fully briefed. . It is ripe for review. After careful review, and for the reasons discussed below, Defendant's Motion (Doc. # 54) is due to be granted in part and denied in part.
From 2003 to present, Plaintiff has resided at 9609 Kourtny Way, Warrior, AL 35180 ("Residence"). (Docs. # 10, ¶ 50; 54-3 at 9).2 On May 4, 1995, Thomas Myrex (who, at that time, was the owner of the Residence) entered into a professional-services contract with Terminix to treat the Residence while the house was being built. (Doc. # 54-1 at 4). Myrex's contract was effective from May 1995 to May 1996, and the terms included treatment and repair protection. (Id.). On May 5, 1995, Terminix "pre-treated" the 1,655 square foot Residence with the chemical, Dursban TC. (Id. at 6-7, 12). The technician applying the treatment was required, under Terminix's policies and Alabama regulations, to always have the "termiticide label . . . with him that he would be required to follow," as well as the termite annual bulletin that lists the procedures technicians are required follow when treating a residence. (Doc. # 54-2 at 45).
In 1995, Marvin and Holly Hardin, III bought the Residence from Myrex. The Terminix contract transferred to the Hardins, and they extended it until May 1998. (Doc. 54-1 at 11, 15, 19). The renewed contract contained the same terms and conditions as the first Myrex contract. (Id. at 17). On August 21, 1995, Terminix performed an "exterior only" inspection, noting there was "no visible sign of active termites." (Id. at 13). On May 31, 1997, Terminix performed another inspection, again noting "no termite activity." (Id. at 19).
According to the Rule 56 record, the Hardins' contract ended in May 1998 and was notreinstated until April 4, 2002. (Id. at 17). Written on the 2002 "Termite Service Plan" are the words "warranty reinstatement." (Id.). This reinstated contract, however, did not contain the provision providing for repair protection that was found in the prior contracts. (Id.).
On April 4, 2002, Terminix performed an inspection, noting that there was "no visible termite activity." (Id. at 20). There were no treatments done. (Id. at 23). Contemporaneously, Terminix completed a "Subterranean Termite Hazard Survey." (Id. at 22). The next year, on March 3, 2003, Terminix performed the required annual inspection, again noting there was "no activity or damage seen." (Id. at 24).
Later in 2003, Plaintiff purchased the Residence from the Hardins.3 (Doc. # 54-3 at 10). Both parties concede in the Rule 56 briefing that Plaintiff assumed the Hardins' 2002 contract, but the record is muddled by the fact that, in Plaintiff's Interrogatories, she states that when she purchased the Residence with her former husband, she "believe[s] that it was another company [providing termite protection services] when [they] bought the house and [the contract] was transferred back to Terminix shortly thereafter, but [she] [doesn't] remember when this happened." (Doc. # 54-4 at 3, ¶ 2). Nonetheless, Plaintiff testified that although she "paid money to Terminix initially in 2003" (see Doc. # 55-2 at 2, ¶ 5), she never received a copy of her contract with Terminix, or a copy of the Hardins' 2002 service plan. (Id. at 3, ¶ 17).
Under the terms of Plaintiff's contract, so long as the annual fee was paid, Terminix agreed to perform annual inspections of the Residence to ensure protection from termite damage. (Doc. # 54-1 at 26). On August 25, 2004, Terminix inspected only the perimeter of the Residence and noted there was "no visible termite activity in [the] accessible areas." (Id. at 35).
There are no records indicating Terminix performed the required annual inspection of the Residence in 2005 and 2006.4 However, from 2007 to 2011, Terminix completed the annual inspections and never observed any signs of termite activity. (See id. at 37-41).
There are also no records indicating that Terminix completed the annual inspection in 2012. In April 2013, however, Terminix received a phone call from Plaintiff regarding a termite infestation she discovered in her youngest daughter's bedroom. (Doc. # 54-3 at 30-31). Plaintiff testified that they arrived home to find the bedroom "swarming" with termites, and they observed visible damage to the baseboard and wall. (Id. at 31). In an effort to cover up the visible damage, Plaintiff's brother repaired the baseboard. (Id. at 34). Thereafter, Plaintiff called Terminix, and on April 4, 2013, Terminix went to the home to "spot" treat the affected area. (Id. at 33). Terminix noted that "live termites [were] located in [the] basement between [the] foundation wall and floor joists." (Doc. # 54-1 at 29). This prompted Terminix to "drill[] into [the] block wall and down drill[] into [the] floor in [the] basement where [the] termites were located." (Id.). Plaintiff testified that "Terminix informed [her] following [the] partial treatment in 2013 that [she] may continue to see dead or dying termites for a little while but assured [her] that the treatment would take care of the termite problem." (Doc. # 55-2 at 2, ¶ 10). Subsequently, on December 6, 2013, Terminix performed its annual inspection on the home exterior, home interior, and basement and found "no signs of [termite] activity." (Doc. # 54-1 at 42).
There are no records indicating that Terminix completed an annual inspection in 2014. Terminix resumed its annual inspection on March 19, 2015, when Terminix inspected the home exterior, home interior, basement, and garage and found "no signs of [termite] activity." (Id. at 45).
On February 26, 2016, Terminix completed its annual inspection on the home exterior, home interior, basement, and garage and found "no signs of [termite] activity" (Id. at 46). However, in March 2016, Plaintiff discovered another termite infestation in her oldest daughter's bedroom around her bedroom window. (Doc. # 54-3 at 35-36). Plaintiff called Terminix on March 24, 2016, and on March 25, 2016, Terminix came to her house to inspect and treat the problem. (Doc. # 54-1 at 49). Terminix observed a "[d]isturbed barrier" and treated the area "by horizontal drilling under [the] bedroom window 10ft both ways with [12 gallons of] termidor sc 6%." (Id.).
A few months after this treatment, Plaintiff called Terminix to ask if the damage to the bedroom window trim would be covered under her contract. (Doc. # 54-3 at 39-40). Terminix informed Plaintiff that her contract did not provide coverage for repairs to "new" damage. (Id.). This prompted Plaintiff to contact another professional-services company to try to get a new "bond." (Id. at 43).
On December 19, 2016, Terminix completed its annual inspection on the exterior of the home. It found "no signs [of termites] in the areas . . . inspected" (Id. at 31).
Unable to secure a new bond, Plaintiff contacted a law firm, and on January 30, 2017, she filed a consumer complaint against Terminix with the Alabama Department of Agriculture and Industries ("ADAI"). (Id. at 44). On February 6, 2017, ADAI sent a "notice of inspection" to Terminix to secure the entirety of Plaintiff's file. (Doc. # 54-1 at 44). Subsequently, on February 14, 2017, ADAI inspected the Residence. (Doc. # 55-3 at 3). ADAI's inspection report revealed that the Residence suffered from termite damage "inside . . . along the front in the sheet rock wall covering and wood window trim . . . [and] in the basement area along the front and left siding." (Id.). The report also noted "some remedial drilling . . . in the brick veneer in an area on the front to the left side . . . [and that] no other mechanics of a post-construction treatment were observed."(Id.). Plaintiff testified that this report was the first time she became aware that Terminix had not completed the proper treatment to the home when it was first built in 1995—i.e., when Myrex built the home and first secured a contract with Terminix. (Doc. # 55-2 at 3, ¶ 16).
On March 6, 2017, after ADAI completed the inspection report, it notified Terminix of its findings and indicated that "there [were] no records supporting final grade treatment to the outside foundation wall areas of the structure." (Doc. # 55-3 at 2). Consequently, ADAI directed Terminix to re-evaluate the Residence and perform any additional treatments necessary "to ensure that an effective and continuous subterranean termite treatment barrier is present and that all work is performed in accordance with label guidelines." (Id.).
On March 24, 2017, at the direction of ADAI, Terminix re-inspected the Residence. (Doc. # 54-1 ...
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