James Wagner v. DA Exterminating Company of St. Tammany, Inc. and LIPCA, Inc.
324 So.3d 105
La. Ct. App.2021Background
- Wagner acquired a house in 2011 that originally was covered by a 2007 DA Exterminating post-construction pest contract and limited damage warranty, which transferred to him in 2012.
- In 2014 Wagner declined the prior warranty options and signed a new DA contract (Aug. 11, 2014) that did not include a damage warranty and contained language disclaiming liability except for damages caused by DA's gross negligence; he also signed waivers limiting treatment in certain areas.
- Wagner renewed the 2014 contract in 2015 and 2016 (modifying some waivers), and DA inspected/treated the property multiple times after reports of sawdust/rot and possible termite activity in 2016–2018; Wagner did not renew for 2017 and his account was closed in June 2018.
- Wagner sued DA (and its insurer) in 2018 alleging breach of contract, breach of warranty, gross negligence, LUTPA violations, and vitiation of consent by unilateral error; DA moved for summary judgment on all claims.
- The trial court granted DA's summary judgment motions and dismissed all claims; on appeal the appellate court affirmed dismissal of all claims except gross negligence, which it found presented a genuine issue of material fact and remanded for trial on that issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2014 contract included or was vitiated so as to incorporate a damage warranty | Wagner contends he reasonably expected the original 2007 warranty to continue and that his consent was vitiated by unilateral error | DA points to the written 2014 contract (signed by Wagner) that did not include a damage warranty and invokes the presumption that a signer knows the document's contents | Held for DA — no warranty in the 2014 contract; Wagner's unilateral error does not vitiate consent (affirmed) |
| Breach of contract for failure to treat or prevent termite damage | Wagner alleges DA failed to properly perform inspections/treatments required by the contract and industry standards | DA shows it performed inspections and treated infestations per the 2014 contract and that liability was limited to gross negligence | Held for DA — no breach of the 2014 contract shown (affirmed) |
| LUTPA (unfair trade practices) claim | Wagner alleges deceptive or unfair conduct (e.g., representations about warranty/coverage) | DA argues no fraud, misrepresentation, or unethical conduct; LUTPA requires such evidence and is narrowly construed | Held for DA — no evidence of LUTPA violation (affirmed) |
| Gross negligence claim | Wagner relies on an expert who opines DA misapplied treatments, failed to follow label/industry protocols, and provided insufficient follow-up inspections | DA contends it responded and treated within contractual timelines and denies grossly negligent conduct | Held: Summary judgment reversed as to gross negligence — a genuine issue of material fact exists; remanded for trial |
Key Cases Cited
- Red Star Consultants, LLC v. Ferrara Fire Apparatus, Inc., 242 So. 3d 608 (La. App. 1st Cir. 2018) (standards for appellate review of summary judgment)
- Peironnet v. Matador Resources Co., 144 So. 3d 791 (La. 2013) (unilateral error and vitiation of consent standards)
- Tweedel v. Brasseaux, 433 So. 2d 133 (La. 1983) (presumption that a signer knows the contents of an instrument)
- Durand v. Board of Trustees of Sheriffs' Pension & Relief Fund, 704 So. 2d 129 (La. App. 1st Cir. 1997) (signatures are not mere ornaments; duty to read before signing)
- Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 35 So. 3d 1053 (La. 2010) (LUTPA requires fraud, misrepresentation, deception, or similar unethical conduct)
- Ambrose v. New Orleans Police Department Ambulance Service, 639 So. 2d 216 (La. 1994) (definition of gross negligence as want of even slight care)
- Tudor Chateau Creole Apartments P'ship v. D.A. Exterminating Co., 691 So. 2d 1259 (La. App. 1st Cir. 1997) (gross negligence described as extreme departure from ordinary care)