Lawsuit. This one simple word is enough to send pest management leaders into full-fledged panic mode. The risk of litigation for insect damage, bed bugs and other issues is extremely high in the pest management world, and the danger seems to be growing. The exorbitant cost of a high-profile lawsuit could ultimately put a pest control company out of business. This is why it’s critical to do everything possible to avoid litigation in the first place.
Keep reading to learn how you can steer clear of lawsuits and minimize the damage in the unfortunate instance that you are sued.
AN OUNCE OF PREVENTION
Benjamin Franklin once said, “An ounce of prevention is worth a pound of cure.” This definitely applies to PMPs who want to reduce the risk of lawsuits. By being proactive and taking a few precautions now, you may be able to prevent a litigation nightmare from rearing its ugly head down the road.
“Pest management leaders can avoid litigation by using proven products in accordance with the label and having thorough, verifiable, auditable training programs for technicians,” advises Daniel J. Gerber, partner and attorney-at-law with Rumberger, Kirk & Caldwell. Gerber represents clients in the areas of toxic tort, class actions, commercial litigation, product liability and governmental affairs. Handling complex cases in state and federal courts throughout Florida and the U.S., he has brought cases to successful resolution by trial or settlement in the federal and state courts of more than 15 states. His clients include national manufacturers of pesticides and industrial chemicals as well as pest control companies.
Gerber goes on to say that pest management companies also can greatly reduce their risk of litigation by keeping precise paperwork. “Too many lawsuits focus on the accuracy of paperwork,” he says. “Follow closely state regulations about maintaining accurate and thorough records of inspections and product applications.”
Faith M. Oi, Ph.D., an extension specialist and director of Pest Management University with the University of Florida’s Entomology and Nematology Dept., wholeheartedly agrees. “There are many factors that lead a customer to sue for [insect damage],” she explains. If you want to evade litigation, Oi says employee training is absolutely essential. “The best defense against litigation from my perspective is to have a well-trained workforce: Technicians who can properly diagnose a problem, the source of the problem, come up with a solution and execute that solution.”
Oi goes on to say that pest control training is not a “once-and-done” scenario. “The industry is constantly evolving,” she emphasizes. “It is one thing to develop a well-trained workforce. It is wholly another to maintain that well-trained workforce.” In other words, ongoing education is a must.
Additionally, Oi says it’s important to ensure your technicians are carefully reading and following product labels. “Product labels change and the product label is federal and state law. Label and SDS comprehension may not be easy, but it is necessary.”
Because legal and regulatory issues can change quickly with little fanfare, Oi says pest management companies should look to their trade associations for the latest industry news and developments. “I recommend that pest control companies be connected to their state pest control association and NPMA,” she suggests.
IN CASE OF EMERGENCY
Even if you are proactive and offer plenty of staff training, maintain meticulous paperwork and cover all of your bases, this will not prevent a customer from suing you. So, what can you do to reduce the damage if a lawsuit is filed against your company?
“Focus on what you can control and remain vigilant,” Gerber says. “Training, product selection, methods and record-keeping are things that you can control. A PMP might perform several thousand services over a few years. A branch manager might supervise tens of thousands of services a year. It’s important to realize that you must maintain quality control on all of those services, all of the time.”
Oi echoes this sentiment, again pointing out that training is pivotal if you want to sidestep legal disasters. “Training should be continual, scheduled regularly, standardized to a large degree and documented,” she emphasizes. “Also, going to association meetings or CEU events should be encouraged.”
Unfortunately, Oi says far too often the concepts PMPs learn in training are not put into action. “Sometimes there is so much unloaded at these meetings it is hard to know where to start or how to integrate new information into the business,” she explains. “Getting the information to filter through an organization in a usable format is another challenge but can help mitigate damages. Many times, technicians must rely on supervisors who have attended the association meetings/CEU events to share the information.”
She adds that training doesn’t have to be a “marathon” event that drags on for hours or days. “It is probably better to set aside 10 to 15 minutes a day (or even just a couple of times a week) to cover a couple of bullet points of a new concept or reinforce an existing one,” she says. For example, one short training session could cover how to tell the difference between drywood termites and the Formosan subterranean termite. When it comes to training, Oi says consistency is key.
“Finally, building a relationship with customers to increase communication is a good way to avoid lawsuits and possibly reduce damage—but the information communicated has to be accurate,” she asserts.
“Customers have access to the same information you do. They may be more motivated to research problems that they want solved because their pest problem is personal.” Because communication is a completely separate skill from pest control, it’s imperative for PMPs to learn and continually practice how to communicate with customers.
LIMITING YOUR LOSSES
Many pest management leaders rely on warranties and contracts to minimize the damage of a potential lawsuit. “Warranty and contract language usually can’t stop someone from trying to sue you, but a well-written contract can limit your losses if there is a claim,” Gerber explains. “Most courts will enforce contract clauses that limit the types and amount of damages that will be paid in a lawsuit. Some of these clauses limit damages to the cost of the service or state that no damages for loss of use, loss of personal property, or loss of real property are recoverable.”
Last but not least, Oi says to make sure each customer understands the terms and scope of the service your company is providing. “Don’t overpromise,” she warns. “In the end, litigation happens when people cannot agree.”
Gerber agrees, adding that it’s important to ensure your advertising, marketing and contract language promise precisely what you can deliver. “Overpromising service performance can result in costly consumer fraud lawsuits,” he says.
BY AMY BELL