Minimizing Your Risk from Bed Bug Lawsuits

Bed bug lawsuits are most often filed against apartments and hotels. But pest control companies may be named as codefendants. It might be the plaintiff (the party filing the lawsuit) that designates the pest control company as a codefendant. More often, though, it is actually the pest control company’s customer — or, to be more accurate, the customer’s insurance company — that decides that the pest control company should share in the potential liability as a codefendant or third-party defendant.

The argument is that since the current defendant hired the company to control bed bugs, and since the company’s agents are the experts at bed bug control, those experts share the responsibility for any damages for bed bug infestation awarded by the court.

In a typical bed bug lawsuit, the plaintiff’s attorney will try to convince the jury that the defendant did not act responsibly or meet the “standards of care” that would have been exercised by a reasonably prudent professional in that line of work, whether managing an apartment or hotel or providing bed bug service.

In the authors’ experience, most bed bug cases settle for far less than the amount of the claim: typically, less than $20,000, but on occasion much higher. The dollar amount of a particular settlement, however, is difficult information to obtain. Confidentiality clauses in settlement agreements have become the rule as defendants try to avoid bad publicity and avoid the reputation of being a soft target for claims.

You cannot prevent someone from suing you. You can, however, take steps today to protect yourself in court tomorrow. Then, even if a plaintiff wins a judgment against you or your attorneys decide to settle, you can reduce the amount of damage you sustain.

MAKE YOUR SERVICE DEFENSIBLE. One of the best ways to protect yourself is to be sure you are providing effective and “reasonable” pest control service. Plaintiffs’ attorneys nearly always try to show that bed bug service did not meet established “standards of care.” In legalese, a professional standard of care is defined as the level of care, diligence and skill that is prescribed in a professional code of practice or as other professionals in the same discipline would act in similar circumstances.

That discipline could be pest control, residential property management, hotel management, etc. If you do not meet the standard of care for your discipline, the court may consider you negligent or otherwise at fault.

Plaintiffs’ attorneys typically try to show that defendants deviated from what they consider established standards of care for pest control and property management, including such things as:

• Not taking reasonable and proper steps to correct the bed bug problem.
• Taking excessive time between learning of the infestation and taking adequate action to control the bed bugs.
• Not ensuring that new tenants are moved into a residence free of bed bugs.
• Not providing adequate service, treatments, inspections or monitoring for bed bugs.
• Not inspecting rooms or units adjacent to the infested one, and not servicing them as necessary.
• Not keeping records of complaints, service, conditions, cooperation, inspections and follow-ups.
• Using unqualified or inexperienced pest control personnel or service providers.
• Using ineffective or improper insecticides or equipment.
• Overapplying insecticides by repeatedly and unsuccessfully treating sites, thereby subjecting the occupants (the plaintiffs) to short and long-term illness and injury.

STANDARDS OF CARE. The term “standards of care” is problematic for professional bed bug control service since the United States does not have a code of practice for bed bug control, as does Australia, for example. Also, the technology is evolving so quickly that many new bed bug tools and procedures enter the marketplace with no independent testing from government or otherwise.

Manufacturers say their products work, of course, but it typically takes years before a university or other independent organization tests these products and publishes the information.

This means that the primary way the industry determines whether or not many new tools or procedures are effective in the real world is by trying them on their customers. This puts pest control companies at risk in court.

Probably a more useful standard for pest control companies is to act “reasonably.” Whether a particular control procedure is “reasonable” may be subject to debate. Help protect yourself and your customers by using products and tactics that have a history of success, and that are scientifically defensible.

They should be supported in the pest control literature, and generally conform to best management practices or guidelines such as those of the National Pest Management Association (NPMA’s Best Management Practices for Bed Bugs).

PROBLEM AREAS IN COURT. The practices that cause defendants trouble in court are those generally seen by industry professionals as being problematic or substandard, such as the following:

• Not inspecting rooms or units adjacent to infested sites.
• Not following manufacturers’ instructions for insecticide applications or heat treatments.
• Depending on insecticides that have a history of significant bed bug resistance.
• Not providing follow-up inspections and service.
• Not spending adequate time on inspections and service.
• Not using reliable techniques to confirm that control was achieved.

ACTIONS TO LIMIT RISK. Besides providing effective and “reasonable” pest control service, pest management professionals can limit their company’s risk from bed bug lawsuits by doing the following:

• Practicing defensive recordkeeping.
• Providing effective bed bug training to technicians, inspectors and sales staff.
• Responding quickly to every bed bug crisis.