Menard v. Orkin LLC

          MEMORANDUM RULING

          CAROL B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.

         Before the Court are the following motions filed by defendant Orkin, LLC (“Orkin”): (1) Motion For Partial Summary Judgment on Contractual Limitation of Liability [Rec. Doc. 37]; and (2) Motion for Partial Summary Judgment on Plaintiffs' Negligence Claims [Rec. Doc. 39]. The plaintiffs oppose both motions in a single brief [Rec. Doc. 46], and Orkin filed a Reply brief [Rec. Doc. 49]. For the following reasons, Orkin's motions are GRANTED.

         I. Factual Background and Procedural History

         The instant lawsuit seeks to recover money from defendant Orkin for damages to a residential dwelling due to termites. The following facts are undisputed:

• On or about January 1, 1979, Orkin and Jim Fuselier entered into an “Orkin Exterminating Company, Inc. Subterranean Termite Agreement” (“Agreement”) on the property located at 2503 Frankie Street, Abbeville, Louisiana.

• Under the provisions of the Agreement, Orkin issued to Jim Fuselier a “Lifetime Repair Guarantee (“LR Guarantee”).

• Pursuant to the terms of the LR Guarantee, Orkin agreed to pay for the repair of any new Subterranean Termite damage occurring after the date of original treatment for an amount not greater than $100, 000.00. The Agreement states:

SUBJECT TO THE GRAPH AND SPECIFICATIONS AND THE GENERAL TERMS AND CONDITIONS, ORKIN WILL ISSUE A SPECIAL TOTAL PROTECTION LIFETIME SUBTERRANEAN GUARANTEE WHICH OBLIGATES ORKIN, AT NO EXTRA COST, TO RE-TREAT AND REPAIR THE STRUCTURE AND CONTENTS TO REMEDY ANY NEW DAMAGE CAUSED BY SUBTERRANEAN TERMITES, PROVIDED IT IS ESTABLISHED THAT SUCH DAMAGE WAS CAUSED BY SUBTERRANEAN TERMITES AFTER THE DATE OF INITIAL TREATMENT, AND THAT AT THE TIME OF DISCOVERY OF THE NEW DAMAGE, THE DAMAGED AREAS ARE INFESTED WITH LIVE SUBTERRANEAN TERMITES, AND WILL BE RESPONSIBLE FOR SUCH REPAIRS ONLY WHEN MADE WITH ORKIN'S APPROVAL AND UNDER ORKIN'S SUPERVISION AND CONTROL. THE BUYER UNDERSTANDS THAT ORKIN'S LIABILITY FOR SUCH REPAIRS IS LIMITED TO STRUCTURAL AND CONTENTS DAMAGE AND SHALL IN NO EVENT EXCEED $100, 000.00 AGGREGATE LOSS.^[1]

• On the same date, Orkin and Jim Fuselier also entered into a Wood Infesting Organism Agreement on the property located at 2503 Frankie Street, Abbeville, Louisiana. The Moisture Control Contract obligated Orkin to apply a moisture barrier underneath the home and to re-treat the home to prevent fungus or decay.

• In 1992, the Agreement was transferred to Creig J. Menard after he purchased the property.

• In April of 1999, a carpenter found termite damage in the plaintiffs' home and a claim was made by the plaintiffs under the Agreement.

• Orkin evaluated the termite damage and subsequently agreed to pay for repairs in the amount of $14, 147.00.

• In October 2014, additional Subterranean Termite infestation was discovered in plaintiffs' home, and plaintiffs made a second termite damage claim.

• Orkin responded by performing re-treatment to the property in accordance with the terms of the Agreement, and also agreed to pay for additional repairs in successive amounts of $10, 000.00, $10, 000.00, and $15, 000.00 based on ...