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Friday, August 29, 2014

Home Magazine Minimizing Your Risk from Bed Bug Lawsuits

Minimizing Your Risk from Bed Bug Lawsuits

Supplement - Bed Bug Supplement

You can’t prevent someone from suing you. But you can take steps today to protect yourself in court tomorrow.

Larry Pinto & Sandra Kraft | August 28, 2013

The risk of bed bug lawsuits is high...and growing. It’s that “yuck” factor: bugs sucking your blood in your bed while you sleep. More attorneys include bed bug litigation in their portfolio of services. Recent jury awards, such as the $800,000 in compensatory and punitive damages awarded to an Annapolis, Md., woman for being forced to live with bed bugs, will only make attorneys more aggressive in pursuing bed bug litigation. Also, expect to hear soon about class-action lawsuits asking for damages in the seven-figure range for widespread bed bug infestations.

Bed bug lawsuits are typically filed against apartments and hotels. But pest control companies may be named as codefendants. It might be the plaintiff (the party filing the lawsuit) that designates your company as a codefendant. More often, though, it is actually your own client...or to be more accurate, your client’s insurance company...that decides to throw you to the wolves. It generally happens during the pretrial process, months or years after the incident. Your client’s lawyers decide that, since you are the pest control expert, you should share in the potential liability. So they designate your company as a third-party codefendant. It’s a cold, cruel world out there in lawyer-land.

No, you cannot prevent someone from suing you. But you can take steps today to protect yourself in court tomorrow. Then, even if a plaintiff wins a judgment against you, you can reduce the amount of damage you sustain. Here’s how.

Document, Document, Document. Poor documentation kills you in court. A detailed paper trail, which today may be an “electronic” trail, is your best defense. Remember, you are typically defending yourself in court years after the original service. The salespeople that sold the work and the technicians that did the work may no longer work for you. If they still do, they certainly won’t remember many details. No matter how good the original work was; no matter how many times your technician pleaded with the client to let him inspect the adjacent units; no matter what was or wasn’t done, if you can’t show the judge and the jury the proof of it, you risk being skewered in court.

I’ve seen many examples of poor documentation in the cases I have worked on: unreadable handwriting, missing service reports, reports with the wrong dates and addresses, reports with just the technician’s name and date but everything else blank, or a single entry with ditto marks (“) down a series of columns. I commonly see service reports with no details on pest levels, customer cooperation, clutter, etc.

Those are examples of bad documentation. Here are examples of good documentation:
•    Written service protocols including details of your various bed bug services.
•    Bed bug-specific service agreements (see next section).
•    Documented inspections with photos where appropriate.
•    Legible and complete service reports (computerized is best) for each and every visit, which include the following:
–    Rooms infested and levels of infestation in each.
–    Conducive conditions (clutter, crowding, structural problems, etc.).
–    Level of cooperation, and specific descriptions of cooperation shortfalls.
–    Special problems and safety issues.
–    Specific control action taken, including state-required information on pesticide applications.
–    Recommendations for repairs, corrections, improved cooperation, etc.
–    Follow-up actions required of the customer.
•    General guidance on the need for additional treatments, inspections, preparation requirements, preventing future infestations and the like.
•    Written notes for each customer refusal to follow guidance (such as not allowing inspection of adjacent units) and other shortfalls not recorded on service reports.
•    Receipt/acknowledgement signatures from a customer representative each time you provide service and whenever you provide the customer with guidance, information, criticism or recommendations. This can be oh so useful in court.

Save all documentation in the customer’s file until there is no risk of a lawsuit. How long is that? I don’t know. I have seen lawsuits where the pest control company was named as a codefendant three years after the service. I would say save for 10 years to be safe, but ask your attorney.

CONTRACTS & Warranties. Create service agreements/contracts and warranties appropriate to your bed bug service. Many contract issues are unique to bed bugs. Examples include the high risk of reintroduction, the need for cooperation and actions by residents and staff, and the variability of bed bug conducive conditions from site to site. 

The service contract should describe the specific services to be provided and the areas that will be serviced. There should be a section that describes the customer’s obligations to keep the facility in a condition that does not promote bed bug infestations, and the requirements for preparation for service.

The contract should include disclaimer limitations of liability for damages from bed bugs, bites, disease, injuries, loss of use or income, property damage, etc. In addition, the contract should specifically exclude damages for replacement of infested or treated items (mattresses, furniture, rugs, etc.), medical expenses for bed bug bites, moisture damage, and other potential damages caused by bed bugs or bed bug service, excepting gross negligence.

Be very conservative with your bed bug warranties. Don’t overpromise results. Many pest control companies only warranty that they will provide the service described in the service contract, and not that they will eradicate or eliminate the bed bugs.

Warranties, service contracts, service agreements and similar documents related to bed bugs should be prepared by an attorney or, at the very least, reviewed by an attorney to ensure that the documents protect your interests under state and local laws.

Control Tools & Procedures. Lawsuits against pest management professionals often turn on whether the service met what is called the professional “standard of care” for bed bug control. In legalese, a professional standard of care is defined as the level of care, diligence and skill that is prescribed in a professional code of practice, or as other professionals in the same discipline would act in similar circumstances. If you do not meet the standard of care, you may be considered negligent.

In my view, this term is problematic for bed bug control since (1) we in the United States do not have a code of practice for bed bug control (as does Australia, for example), and (2) the technology is evolving so fast that many new bed bug tools and procedures enter the marketplace with no independent testing, government or otherwise.

The manufacturers, of course, say they work, but it typically takes years before a university or other independent organization tests these products and publishes the information. This means that the primary way the industry determines whether or not many new tools or procedures are effective in the real world is by trying it on their customers! This puts PMPs at risk in court, of course.

Probably a more useful standard for PMPs is to act “reasonably.” Which control procedures and practices are reasonable is difficult to define but certainly include using products and tactics that have a history of success, that are supported in the pest control literature, that generally conform to best management practices or guidelines (such as NPMA’s), and that are scientifically defensible.

The practices that cause you trouble in court are those generally seen by industry professionals as being problematic or substandard, such as using insecticides that have a history of significant bed bug resistance, not inspecting rooms or units adjacent to infested sites, not following manufacturer’s instructions (such as for insecticide applications or heat treatments), not providing follow-up inspections and service, and not spending adequate time for inspections and service.

Technician Qualifications and Training. Everyone now knows that bed bugs are far more difficult to control than other pests. Your bed bug technicians need rigorous training on bed bugs, inspections, prevention and all the other facets of bed bug control. NPMA’s Best Management Practices for Bed Bugs lists 12 categories of training information that technicians need at a minimum. You can be sure that plaintiff attorneys are aware of these recommendations. Make sure that your technicians have such training and, just as importantly, that you can document that training with attendance records, course materials, reading list check-offs and the like. 

Customer Communications & Education. Make sure that a prospect, a customer or a resident has realistic expectations about bed bug control. Use candor to adjust expectations. Explain verbally and in writing how difficult it is to control bed bugs, that it requires a partnership between all the parties, that there is no silver bullet, that it can take multiple service visits, that bed bugs can reinfest, etc. Customers should clearly understand their responsibilities.

Provide information on bed bugs: The more handouts, the better. Explain your service preparation requirements.

These communications should begin at the initial sales contact and continue throughout the contract. Be sympathetic to your customer’s position if problems arise.

A word of warning: Everyone at a company needs to be careful what they say to managers and residents. For example, no matter what the service agreement says, if the sales staff or the technician says “your bugs will be gone in a week” that is what the customer will expect.

If a technician or sales rep means to say to a resident, “If you have a really badly infested piece of furniture you may want to dispose of it” but instead says, “If you have bed bugs, you need to dispose of your things,” you may have a problem. If that resident believes that they must throw out everything and finds out later that disposal is unnecessary, the court can find you liable for the cost of replacement. I have seen this happen in two court cases.

Furthermore, it is amazing how often an item that was purchased for $200 10 years earlier mysteriously turns into a $5,000 heirloom. Awards for replacement of personal possessions can easily reach $50,000 or $60,000, or more.
Other Actions to Limit Risk. Pest management professionals providing bed bug management services to their clients should take a number of other actions to ensure they don’t find themselves embroiled in a costly lawsuit.

These include:
•    Check the labels of your insecticides for permitted sites of application (especially uses on mattresses, beds or accessible surfaces).
•    Periodically spot-check your technicians’ reports for legibility, clarity and completeness.
•    DON’T require unreasonable preparation by residents.
•    DON’T mandate disposal of beds or other possessions.
•    Consider the health impacts of your insecticide treatments, especially to those who are ill, aged, bedridden, and to children and pets. Avoid treating the same sites repeatedly with long-lasting, residual insecticides.
•    Inspect units adjacent to infestations, and if you can’t, document why and get a signature.
•    Don’t base actions ONLY on findings of bed bug dogs, whether negative or positive.
•    Active infestations should be verified by finding live bugs; and don’t declare there are no bed bugs just because you didn’t find any.
•    Make sure the client has reasonable expectations of your service.
•    Review your insurance with an expert to make sure that you have the proper coverage matched to your specific bed bug services.

Larry Pinto is an entomologist and industry consultant with Pinto & Associates. He writes extensively about bed bugs, including coauthoring the Bed Bug Handbook, speaks regularly at training sessions on bed bugs and their control and regularly consults on bed bug lawsuits. You can contact Pinto at www.techletter.com.