Orkin Exterminating Co. v. DelGuidice

No. 5D00-1997 (790 So. 2d 1158) (Fla. Dist. Ct. App. July 13, 2001)

ELR Digest

The court holds that a trial court improperly granted an individual stigma damages in his breach of contract case against a termite company. The individual and the company entered a contract whereby the company promised to repair termite damage and to retreat the house to prevent or control a re-infestation as long as the individual paid his premium. The individual sued the termite company for breach of contract and was awarded $ 300,000 in stigma damages for the reduced value of his house. The court first holds, however, that stigma damages were not contemplated by the terms of the parties' contract and, therefore, were improperly before the jury. The contract specifies that the exclusive remedy for a breach of the contract is retreatment and repair. Stigma damages could have been before the jury if evidence had been presented that the cost of repair was substantially greater than the diminution in value. The individual, however, did not demonstrate that it would constitute economic waste to have existing termite damage repaired and to have the termite company retreat to prevent or control a re-infestation. Neither a showing of impracticability nor of economic waste was made, and, therefore, the individual's remedy was limited to that specified in his contract: retreatment and the repair of damage caused by termite infestation subsequent to issuance of the guarantee. Thus, the case is reversed and remanded.

The full text of this opinion is available from ELR (9 pp., ELR Order No. L-386).

Counsel for Appellant
Douglas B. Brown
Rumberger, Kirk & Caldwell
201 S. Orange Ave., Ste. 300, Orlando FL 32801
(407) 872-7300

Counsel for Appellee
David Oliver
Greenberg Traurig
111 N. Orange Ave., Orlando FL 32801
(407) 999-4898

[31 ELR 20880]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]