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Bedbugs

A Problem from the Past Is Coming Back


April 1, 2009   by Jeff Gibbs


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A problem from the past is coming back, showing up in a number of places, even in high-end hotels.

I remember hearing stories growing up about my grandmother walking into hotel rooms in the 1930s and pulling back the sheets to check for scurrying bedbugs.

Over the years, techniques and chemicals to deal with bedbugs seemed to virtually eliminate the problem. When they did appear, high power chemicals were brought in, places were cleaned, and comfort levels restored.

But now “bed bugs have also made a comeback in the U. S.,” according to the University of Kentucky’s Department of Entomology. “They are increasingly being encountered in homes, apartments, hotels, motels, dormitories, shelters and modes of transport. International travel and immigration have undoubtedly contributed to the resurgence of bed bugs in this country. Changes in modern pest control practice — and less effective bed bug pesticides — are other factors suspected for the recurrence.”1

In an article about the increase in reports of bedbugs, a spokesperson for Abell Pest Control tells CTV.cathat, “About 85 per cent of our technicians now continually deal with bed bugs . . . We see them in any transit destination, the Niagara belt, Toronto, Vancouver — pretty much in every city across the country.”2

Impact on adjusters

First, we need to be aware that a problem can exist.

The starting point, like any other claim, is to determine if coverage might be available and what questions you need to ask in your investigation to determine the coverage issue. If you are also dealing with a potential liability situation, you need to determine the legal basis for any claim, then investigate your claim accordingly. Understand the principles which would apply to determine the value of the claim, both for reserving purposes and, if liability exists, for ultimate settlement negotiations.

Property policies

For property policies, review the wording. Named perils polices generally don’t provide coverage since bugs are not a listed peril, and most all perils property policies have an exclusion for “vermin.” Dictionary definitions for the term vermin include “small animals or insects, such as . . . cockroaches, that are destructive, annoying, or injurious to health,”3 and “small common harmful or objectionable animals (as lice or fleas) that are difficult to control.”4 If there is a vermin exclusion, the typical property policies would not cover a bedbug infestation.

Legal liability

If property policies do not cover bug infestations, when could you see a legitimate claim? Your claims will usually be liability claims, especially when there is either a physical or a psychological reaction. Most people are not accustomed to seeing bedbugs and we live in a very litigious age.

Just because bedbugs are found does not necessarily create legal liability for resulting damage. There has to be a duty, a breach, and resulting damages. Bedbugs have been found in basically all settings, no matter how clean they are kept. Simply having bedbugs present does not mean that a significant physical injury or harm results. Toronto Public Health notes in a Fact Sheet that, “Currently there is no evidence that bed bugs transmit blood-borne infectious diseases such as Hepatitis B, Hepatitis C or HIV. It has been determined that these viruses do not replicate inside the insect’s body, and animal model studies have never been able to demonstrate insect-to-animal transmission. Infestations, however, can cause anxiety, secondary infections, allergic reactions and financial hardship.” 5

Duty of care created by statute

Statutes can create a duty of care, which, if breached can create liability in tort or contract. This responsibility is not absolute, and often knowledge is required for there to be liability. In provinces with Occupiers Liability legislation, property owners are held to a duty of “reasonable care” to ensure the premises are “reasonably safe”. Innkeepers are held to a level of conduct and cleanliness by various innkeeper and related acts. Rental properties can come under legislative control, both under landlord-tennant legislation, and various health bylaws. Toronto Board of Health says that landlords are responsible for ensuring that homes are pest free, and tenants are responsible to cooperate with the landlords in making this happen.6

Duty of care created by case law

While legal principles related to duty of care and negligence can always be applied to show the applicable duty of care, there is very little specific case law dealing with bedbugs.

Reported cases in the last few years which mentioned bedbugs attempted to use their presence as evidence in either child custody cases or mental competence cases.

Cases decided between 1983 and 1994 dealt with landlord-tenant situations or property sale situations. In Fleming v. Bradwin Properties the tenant alleged bedbugs and cockroaches in a furnished apartment, but stayed for months without written complaint. The judge allowed partial abatement of rent, feeling the situation could not be as bad as claimed since no written complaints were made.7Hagan v. M. Bergen involved premises infected with bugs, including bedbugs, and repudiation was made within reasonable time. The judge held the tenant was entitled to vacate and was not required to give specified notice.8Perison v. Watson involved a property that was sold, infested with bedbugs and the buyer was not advised of the situation. The judge held there was a fraud in the sale of the property because of this failure to advise. These cases have little to do with typically insurance claims.

Cases decided between 1933 and 1957 dealt with several issues. In Kruciak v. Antoniuk the landlord alleged the tenant was responsible for bedbugs, and the court would not decide on a summary basis.10 In Hurt v. Keroack representations were made there were no bedbugs on the premises, the court held this was a condition of sale, and rescinded the purchase agreement.11In Bowes v. Fec the court held found an implied condition existed that the premises would be in a fit state for their intended use and allowedrescision.12Karasevichv. Brinboim ruled the other way, holding nothing was said or asked about bedbugs when the property was viewed by the tenant, no representations were made about condition, the claimant was not protected, and there was no implied term in the contract about condition.13Martin v. Larsen was a landlord-tenant case on the other side, it was shown that infestation of premises with bedbugs came through tenant’s fault, and the tenant breached the implied duty to use the property in a tenant-like manner.14

As you can see from the cases, under the right circumstances, there can be a duty owed by a landlord, by a tenant, and by someone offering a property for occupancy.

Damages

If liability exists, what are damages? In hotel situations the adjuster is involved because the hotel’s internal customer service did not resolve the issues or demands made are beyond beyond what is reasonable. Generally damages must be foreseeable. Foreseeable items include temporary housing (or a change of rooms at hotel) and cleaning costs for any contents which might be contaminated by the bedbugs. As well, the normal minor discomfort, rash, etc, is also foreseeable. Minor anxiety, secondary infections, allergic reactions and financial hardship may also be foreseeable. Abnormal psychological reactions, claims for ruined vacations, and out of the ordinary physical reactions, need to be closely examined. As the Supreme Court pointed out in the Athey case, 15 thin skull situations can create damages, while crumbling skull ones only result in damages to the extent of the aggravatio
n.

Summary

Bedbugs are on the rise. Generally first party policies exclude damage caused by vermin. If you get a liability claim, be sure to properly assess the situation, starting with the duty of care. If liability is present, check to see if damages claimed are foreseeable.

Jeff Gibbs, F. C. I. P, C. R. M., J. D.(LL. B.) is currently part of Crawford’s Quality Division, is an active participant in Crawford’s Professional Standards reviews and is casualty supervisor for Western Canada. He is a former lawyer and implemented and ran the first ISO quality system for an adjusting firm in Canada.

1. http://www.ca.uky.edu/entomology/entfacts/ef636.asp

2. http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20071115/bedbug_spread_071117/20071119/

3. http://www.thefreedictionary.com/vermin

4. http://www.merriamwebster.com/dictionary/vermin

5.www.toronto.ca/health/bedbugs/pdf/healthcareprofessionals.pdf

6.http://www.toronto.ca/health/bedbugs/pdf/rightsandresponsibilities.pdf

7. 1994 CarswellOnt 2879

8. 28 Man. R. (2d) 271 [1984]

9. [1983] B. C. W. L. D. 092

10. [1946] 3 W. W. R. 252

11. [1943] 1 W. W. R. 715

12. [1933] 1 W. W. R. 101

13. [1957] 22 W. W. R. 613

14. 59 B. C. R. 398 [1944]

15. Athey v. Leonati, [1997] 1 W. W. R. 97


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