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Menard v. Orkin LLC
United States District Court, W.D. Louisiana, Lafayette Division
October 16, 2018
CREIG J. MENARD, ET AL.
ORKIN, LLC d/b/a ORKIN
B. WHITEHURST UNITED STATES MAGISTRATE JUDGE.
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.
Factual Background and Procedural History
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
• 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
• 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
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