ORKIN EXTERMINATING COMPANY OF SOUTH FLORIDA, INC., A FLORIDA CORPORATION, APPELLANT,
v.
LOUIS J. CLARK AND PATRICIA CLARK, APPELLEES
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Orkin Exterminating appeals a jury verdict awarding $7,683.20 for termite damage, contending a contractual limitation of liability to $5,000 should apply. The appellate court affirms liability but reduces the award to the contractual cap, holding that a valid liquidated damages clause in a service contract applies even when the claim is framed as negligence in tort rather than breach of contract.
The court affirmed liability but reduced the judgment to $5,000, holding that a valid limitation of liability clause in a contract applies regardless of whether the breach is characterized as a tort action or contract action, because the duty and its breach must be determined by reference to the contract that created that duty.
[1] A contractual limitation of liability is enforceable even when the claim is brought in tort, if the tort duty arises solely from the contract.
[2] The nature of a duty owed and the consequences of its breach are determined by the contract that created the duty, regardless of whether the action is brought in contract…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although an action in tort may sometimes be brought for the negligent breach of a contractual duty, Jones v. Kelly, 208 Cal. 251, 280 P. 942, still the nature of the duty owed and the consequences of its breach must be determined by reference to the contract which created that duty.”
Establishes that contractual duties remain contractual in nature even when breached negligently and sued upon in tort.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOrkin contracted with the Clarks to control a subterranean termite infestation and treat their premises, with annual renewal payments of $15 for re-in…
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Defendant-appellant Orkin Exterminating Company of South Florida, (“Orkin”) appeals from a final judgment awarding $7,683.20 (plus interest and costs) for termite damage entered pursuant to a jury verdict.
At issue is the sufficiency of the evidence to support the jury verdict and final judgment in light of a contractual limitation of liability in the amount of $5,000.00.1 We affirm the judgment as to liability, but reduce the amount awarded to $5,000.00 (plus interest and costs.)
The Clarks sued Orkin for breach of contract and negligence in the performance of that contract. The parties contracted to “control” a subterranean termite infestation and to “treat” the Clarks’ premises therefor. The contract provided for annual renewal payments of $15.00 cov*885ering annual re-inspection after the 1963 treatment.
The Clarks contend that Orkin guaranteed against termite damages during the six year period and that Orkin negligently failed to make proper annual inspections. Orkin generally contends that there was no .evidence that the original treatment was improperly performed or that the annual reinspections were improperly performed, and that the $5,000.00 limitation of liability in the contract precluded entry of a larger jury verdict.
A similar argument advanced by appellant was considered and ruled on correctly, we think, in Better Food Markets, Inc. v. American Dist. Tel. Co., 40 Cal.2d 170, 253 P.2d 10, 15-16, 42 A.L.R.2d 580 (1953). Therein it was said:
“The plaintiff seeks to avoid the effect of the liquidation clause on the ground that it has no application to a tort action. However, the plaintiff makes no claim that a duty was owed to it outside of that created by the contract, and no breach of duty was alleged other than a failure to render the contracted for service. Although an action in tort may sometimes be brought for the negligent breach of a contractual duty, Jones v. Kelly, 208 Cal. 251, 280 P. 942, still the nature of the duty owed and the consequences of its breach must be determined by reference to the contract which created that duty. In the present case the duty created by the contract was one for which liability for a breach thereunder was fixed, and whether the action is brought in tort or in contract the nature of the duty remains the same. The plaintiff cites no authority and none has been discovered to the effect that where the breach of a duty created only by contract is a negligent one the application of a valid clause for liquidated damages may be avoided by bringing an action in tort.”
For the reasons stated the judgment is reduced to $5,000.00 (plus interest and costs), and as modified is affirmed.
As modified, affirmed.
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Orkin Exterminating Co., Inc. v. Montagano, 359 So. 2d 512 (Fla. 4th DCA 1978)…ut also those which exempt liability altogether. Middleton v. Lomaskin, 266 So. 2d 678 (Fla. 3d DCA 1972); Kinkaid v. Avis Rent-A-Car Systems, 281 So. 2d 223 (Fla. 4th DCA 1973). Furthermore, in Orkin Exterminating Company of South Florida v. Clark, 253 So. 2d 884 (Fla. 3d DCA 1971), the court upheld a clause in a termite agreement limiting the termite company’s liability to $5,000, even though the damage had been caused by inadequate treatment by the termite company. However, in this last cited case, possibl…
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Action Orthopedics, Inc. v. Techmedica, Inc., 759 F. Supp. 1566 (M.D. Fla. 1991)…ntract. Specifically, Defendants argue that Plaintiff cannot avoid the limitation of liability clause by suing in tort, and Plaintiff has alleged no cause of action in tort. Defendants rely on Orkin Extermination Co. of South Florida v. Clark, 253 So.2d 884 (Fla. 3d DCA 1971). Defendants’ reliance is misplaced. Clark can be readily distinguished from the case at bar. Clark involved a breach of a contract to spray a home infested with bugs. The Clark court found that the only duty owed to…