Brenda Busby v. Orkin, LLC

Summary

The United States District Court for the Southern District of Alabama addresses Orkin, LLC’s motion for summary judgment in Brenda Busby’s action concerning termite damage to her home. The court grants summary judgment on Busby’s negligent and wanton conduct claims, but denies it on her fraudulent misrepresentation and concealment claims, and addresses the common-law rule of repose and contractual damages limitations. The excerpt does not include the complete disposition or the order date.

Holdings

1. Busby's fraudulent misrepresentation and fraudulent suppression claims were not barred as a matter of law because Orkin had an extracontractual duty to provide complete and accurate material information when soliciting annual renewal business. Genuine issues of material fact existed as to whether Orkin misrepresented or concealed facts inducing Busby to continue renewing the termite agreement.
2. Summary judgment was granted on any promissory-fraud theory because the complaint did not assert a separate promissory-fraud claim and the record contained no facts showing that Orkin intended to deceive Busby when it made the promise to retreat.
3. Summary judgment was granted on Busby's negligent supervision, wanton supervision, negligence, and wantonness claims because the alleged failures to inspect or retreat were failures to perform contractual duties, or nonfeasance, rather than affirmative negligent conduct in performing a promise.
4. The rule of repose barred Busby's breach-of-contract claims based on conduct occurring before January 31, 2005, but the court could not determine on the summary-judgment record that the rule barred Busby's tort claims based on pre-2005 conduct.
5. The contract unambiguously required Orkin to provide an initial treatment, conduct annual inspections, and retreat the property if subterranean-termite reinfestation was found. A reasonable jury could find that Orkin breached its post-January 31, 2005 obligations to conduct annual inspections and retreat if reinfestation was found.
6. Summary judgment was granted to Orkin on Busby's request for repair costs under the breach-of-contract claim because the contract expressly limited Orkin's liability to retreatment and disclaimed responsibility for structural damages and repairs.
7. Punitive damages were unavailable on the breach-of-contract claim, but the court denied summary judgment on punitive damages tied to the fraud claims because a jury could determine whether clear and convincing evidence established fraud.
8. Summary judgment was denied on Busby's request for litigation fees or costs because Orkin did not address the asserted Alabama exception to the American rule for litigation involving fraud.
9. Summary judgment was granted to Orkin on Busby's entitlement to equitable relief because Busby did not show that monetary damages were inadequate and no genuine dispute of material fact existed on that issue.

Questions Presented

1. Whether Busby's tort claims were barred because they arose from contractual duties rather than an independent duty or affirmative tortious conduct.
2. Whether the Alabama common-law rule of repose barred claims based on conduct occurring before January 31, 2005.
3. What duties Orkin assumed under the termite-services contract and whether a reasonable jury could find a post-January 31, 2005 breach.
4. Whether the contract's limitation of liability barred recovery of repair costs and whether the limitation was unconscionable.
5. Whether Busby could pursue punitive damages, litigation fees or costs, and equitable relief.

Disposition

other