[Bed Bug Supplement] Bed Bug Lawsuits: Reducing Your Clients’ Risk

Editor’s note: The following article, written by industry consultant Larry Pinto, is the author’s second PCT article addressing the subject of bed bugs and lawsuits (see “Minimizing Your Risk from Bed Bug Lawsuits,” August 2013).
 

Until they experience a bed bug crisis first hand, property managers usually can’t comprehend the full impact on their property. Most fail to appreciate just how difficult it is to control bed bugs once they have spread and become established.

That’s why property managers often address bed bug complaints with the same casual approach as complaints about cockroaches or ants. They typically do not respond aggressively, at the first sign of trouble, and before the bed bugs become entrenched and spread to other areas of the building. And property managers often resist investing the time, money and effort necessary to control a bed bug outbreak. That puts both of you at risk of a lawsuit.

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 “standard of care” that would have been exercised by a reasonably prudent professional in that line of work (whether managing an apartment, a hotel, or providing bed bug service). Deviations from the standard of care that plaintiffs’ attorneys typically try to show include:

• 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 providing adequate service, treatments, inspections, or monitoring for bed bugs.
• Not inspecting rooms or units adjacent to the infested one, and servicing them as necessary.
• Not keeping records of complaints, service provided, conditions, cooperation, inspections, follow up, etc.
• Using unqualified or inexperienced pest control service providers.
   

Your clients, of course, are responsible for their own actions, or lack of action, when dealing with bed bugs. But there are actions you can take to help your clients avoid these kinds of deviations, minimize their risk of lawsuits, and reduce their liability if a lawsuit is ultimately filed. Of course, by doing so, you also reduce your own liability and risk from any bed bug litigation. But you must be proactive.
 

Bed Bug Guidance You Can Provide.

From the first sales presentation, to the proposal, to the service agreement, and all during the service term, you should be providing information and guidance to your clients about bed bug control. Examples of guidance include:

1. Providing informational handouts on bed bugs and especially guidance to help managers deal with bed bugs in their type of facility. NPMA has protocols for responding to bed bug problems specifically written for managers of eight different commercial sites, including both apartments and hotels. For apartments, also provide informational handouts that property managers can give to tenants.

2. Helping the client develop a written bed bug “action plan” or protocol with a step-by-step response to a bed bug incident.

3. Inspecting adjacent apartments or hotel rooms whenever bed bugs are confirmed in a location. Depending on the circumstances, this might include locations across the hall and above and below the infested site. Because of the added cost, many managers refuse this inspection service. You must convince them otherwise. It is a powerful point in court when a plaintiff argues that the bed bugs came from next door and can show that adjacent sites were never inspected or treated. Some companies include adjacent inspections as a contract requirement in their service agreement; they require clients to sign a waiver if they refuse.

4. Providing information on training critical staff about bed bugs, their biology and habits, recognition, how to respond to complaints, etc. Some pest control companies provide this training, either as a free service or for a fee.

5. For apartments, recommending that they include specific wording in the lease addressing bed bugs, including tenant responsibilities and complaint procedures.

6. Explaining that the property should never rent a previously infested apartment or a hotel room until reasonably sure the bed bugs have been eliminated and old evidence has been removed, painted over, etc.

7. Recommending that apartment managers do NOT insist that residents discard infested materials. Cost for replacement has become a major issue recently in bed bug cases.
 

Provide Effective Service.

There is no one proper way to control bed bugs, and in my view there are no defined “standards of care” for bed bug service. Nevertheless, plaintiffs’ attorneys nearly always try to show that bed bug service did not meet the pest control industry’s standard of care. Protect your clients and yourself by using products and tactics that are scientifically defensible, supported by the pest control literature (such as articles published in PCT magazine), and generally conform to best management practices and guidelines. Here are some other suggestions:

• Don’t overpromise
• Have clear protocols and policies
• Define customer responsibilities
• Do not mandate disposal of personal items
• Have reasonable preparation requirements
  
   

Practice Defensive Recordkeeping.

Keep neat and careful records...as if the next time you see them will be in court. I discussed the importance of good bed bug documentation for your protection in my earlier PCT article (“Minimizing Your Risk from Bed Bug Lawsuits,” August 2013). The guidelines discussed there will help protect your customers as well as yourself. To briefly review: Make sure your technicians’ service reports, action reports, etc., are neat, readable, and complete; spot-check them occasionally. Have bed bug-specific service agreements and protocols; provide recommendations in writing with guidance on preparation, prevention, further inspections or treatment, and the like.; and save all documentation related to bed bugs in customer files for as long as there is a risk of a lawsuit. No one knows how long that is, but at least five years — and 10 years to be safe.
 

Respond Quickly to a Crisis.

Convince your customers of the need to act quickly when bed bugs have been seen or reported. You, too, need to react quickly to calls for service and to service “failures.”

Think about what motivates people to sue over bed bugs. In most cases it is anger. Anger over bites, anger over having to live with bed bugs, anger over cleaning clothes or replacing personal items, anger over delays, anger when they feel they are not taken seriously or are being ignored. In most cases this anger can be diffused by empathy and a quick response, along with advice and information about what will be done.

From a technical standpoint, when you have a service failure, don’t just repeat the same service. You are likely to get the same result. Identify the reason for the failure so you can correct it. Involve a supervisor or the best bed bug problem-solver on your staff to prevent a problem from becoming chronic. Chronic infestations pose high risks for lawsuits.
 

What if Your Customer is Sued?

So what if the worst happens and you learn that your customer is being sued over bed bugs?

First, take action to protect yourself. At some point...and it may be years down the road...you may be named as a codefendant, either by the plaintiff or by your own customer. Contact your attorney and your insurance agent. Begin gathering information and materials about your work on the site in question. Do it right away. As the case proceeds, the information will be much more difficult to locate.

A word of warning. If you find documents that reflect badly on your company, do not alter, hide or destroy them. Doing so can change the case from a civil to a criminal one, and you will be the defendant. Incidentally, you also may lose your insurance coverage. It’s not worth it. Just show the documents to your lawyer.

Second, provide your customer with support. Your records will be subpoenaed, anyway. You can also provide technical information, advice, and the names of experts their lawyer can contact.

Third, prepare yourself and your other employees for depositions and testimony. There is plenty of legal guidance that can be found on the Internet. Be sure that everyone understands the importance of telling the truth and not slanting their testimony for their “side.”

The author is an entomologist and industry consultant with Pinto & Associates. He writes extensively about bed bugs, including coauthoring the Bed Bug Handbook, speaks regularly at training sessions on bed bugs and their control, and regularly consults on bed bug lawsuits. You can contact Pinto at www.techletter.com.