By Ron Rajecki
It’s apparent to many pest management professionals (PMPs) that bed bugs are back — and they’re biting (or, technically, sucking). Along with the increase in bed bugs is a corresponding increase in bed bug-related lawsuits. These suits are generally brought by victims against lodging establishments. But in many such cases, the PMP servicing the establishment is also dragged into the legal mire.
The bad news is such cases are only going to increase in number. The good news is there are steps you can take to protect yourself and your company from having to pay large settlements.
“We’ve seen a substantial increase in the number of reported cases. An Australian study showed a 4,500-percent increase over the 2000-06 period,” says Christian E. Hardigree, assistant president and chief of staff, University of Nevada, Las Vegas (UNLV).
Meanwhile, the pest management industry is fighting back, notes Hardigree, who is also a trial attorney and former department chair of UNLV’s Hotel Management Department. According to Hardigree, the industry spent $178.3 million on bed bug control in 2007, up from $97.9 million in 2006. Yet the bed bug problem continues to grow, as does the litigation associated with it.
“The reality is that the litigation system today really is a form of lottery for many people,” Hardigree says. “Preventing someone from suing you is virtually impossible. The better way to proceed is to try to prevent someone from being successful when they do sue you.”
One important step pest management companies can take to protect themselves is to examine the language on the service agreements they have with their clients closely. Appropriate language may be the key to not losing a lawsuit should your company be pulled into one. Unfortunately, there is no definitive answer as to what constitutes “appropriate language.”
“Laws vary from state to state, so I can’t sit here and tell you there’s one phrase that will keep you from being sued in all 50 states. That just doesn’t exist,” Hardigree says.
A Little Empathy Goes a Long Way
She advises a good course of action is to hire a lawyer in your state to help you draft a service agreement. Admittedly, that’s going to cost you somewhere in the range of $1,000 to $1,500, but it’s well worth it.
“If pest management firm loses a case that was brought for a job they did under that service agreement, they can now sue their lawyer for malpractice because they relied upon the lawyer to provide the language for that agreement. I think it’s important that pest management companies arm themselves with the appropriate individual,” Hardigree says. “Another thing to keep in mind is that in most instances the legal fees incurred in having a professional draft the service agreement for you will be tax-deductible. So it’s a positive way to proceed.”
No Silver Bullet
Timothy Wenk, an attorney with Shafer Glazer LLP, a law firm with offices in New York and New Jersey, agrees that good contractual language is crucial to pest management firms. He also agrees that a “perfect” contract doesn’t exist.
“I wish I could give you the silver bullet and say, ‘Go and cut this contract out of this book and put it into your service agreements and you’ll be safe,'” Wenk says. “Unfortunately I can’t say that.”
Wenk advises including an indemnification clause in service contracts. Such clauses will differ from state to state, as state laws vary on what will be upheld in an indemnification clause, so this is an area that must be addressed with an attorney in your area.
“My advice is to act reasonably,” Wenk says. “The question is, ‘What’s reasonable?’ What would a reasonable pest management company do under similar circumstances?
“That’s the ‘standard of negligence’ in which we live,” Wenk continues. “I know that’s pretty vague, but the fact is the way our legal system is set up, we often have to deal with things on a case-by-case basis.”
There are going to be more bed bug infestations and more lawsuits, and each case is going to be different depending on the PMP doing the service, the contractual language and a number of other factors.
“Speak with you local counsel and try to get an indemnity agreement or a fair agreement where you’re not going to be holding the bag for someone else’s negligence,” Wenk advises.
Educate Your Customers
The “someone else” who may be negligent is often your customer: the owner or manager of the property being sued. So it makes sense, Wenk says, to work with and educate your customers on the importance of a good bed bug control program. It’s difficult to overstate your value to your clients in this regard.
“The worst lawsuits occur when property managers bury their heads in the sand, ignore the problem and don’t hire pest management professionals even though they’re hearing complaints about bed bug bites,” Wenk says. “Then, when someone sues, it makes a nice case for the jury when they hear, ‘This property knew about this problem and didn’t do anything about it.'”
Educate your customers about the importance of inspection to prevent bed bug infestation. Make sure the housekeeping staff recognizes the signs of infestation and stress the importance of prompt treatment, causing the chances of bites — and lawsuits — diminishes.
“We advise PMPs to partner with their hotel, motel, hospital and nursing-home customers to create a partnership upon which good communication and diligence is the foundation of a successful bedbug control program,” says Daniel Gerber, a partner at Rumberger, Kirk & Caldwell, Orlando, Fla.
Gerber says he has been specializing in bed bug litigation for 15 years and has resolved hundreds of cases successfully for PMPs.
“We’ve had outstanding responses to seminars and presentations we’ve made where we encourage PMPs and hotels and motels to combine forces to help control this new threat,” he says.
One of the ways PMPs can help their customers is by educating night desk clerks. Too often, according to Gerber, there are assumptions being made about bed bug bites, such as whether they are bed bug bites at all and whether or not the customer was bitten at the hotel or another lodging establishment.
Educating your lodging establishment customers about adequate documentation, responses and even establishing photographic evidence may ultimately be the best defense for not only the establishment itself but also for the PMP serving it.
“The lodging establishments must establish a protocol for dealing with these complaints just like they deal with any other complaints,” Gerber says. “Lodging establishments should have a page in the desk clerk’s manual detailing how to handle a beg bug complaint.”
Documentation, as always in legal matters, is important for defense. For example, if a guest refuses to allow his or her bites to be photographed, that should be documented.
Gerber advises PMPs to stay current on the best bed bug control technology.
“Doing the same old thing without educating yourself about new technology is hazardous,” he says. Using the most appropriate products to control the pests will be considered by a jury to determine if your company met the “reasonable standard” that a property owner had a right to expect.
Gerber adds that while bed bug control in partnership with your lodging establishment customers presents a good opportunity to increase your company’s visibility and sales, it’s important not to oversell your capabilities. As in any other situation it’s important to offer your customers a realistic assessment of your company’s abilities.
Hardigree echoes that sentiment.
“Some companies have commission plans for their salespeople, and in some cases this may lead to a propensity for the salesperson to overstate effectiveness, misrepresent costs, and so on,” Hardigree says.
“So just like you’ll find ‘secret shoppers’ in restaurants and other businesses, I think it’s best to ‘secret shop’ your sales personnel as well. If they’re making overreaching statements, you could be held liable under an expressed warranty claim, and many courts have ruled that you cannot disclaim an expressed warranty.”
Problem Here to Stay
Ultimately, the resurgence of the bed bug problem is not going to go away any time soon. More bed bugs means more bites, and more bites means more litigation.
“It’s certainly something that’s going to get worse before it gets better, not just nationally but internationally,” Hardigree says. “We’re finding bed bugs not only in hotels and motels, but in nursing homes, college dorms and summer camps — wherever there’s an aggregation of people. Also, people are self-diagnosing bug bites on the Internet, so there’s an increase in the number of people who believe they’ve been bitten whether they have been or not.
“Add to that the fact that litigation tends to increase in a bad economy, and I think it’s safe to say we’re going to see a significant increase in the amount of litigation in this area,” Hardigree warns.
Yes, bed bugs are back. But taking a few simple steps to avoid or overcome the legal problems these pests can present will help you sleep tight and not let the … well, you know the rest.
You can reach Rajecki, a freelance business writer, at email@example.com.