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Lawskills.com Georgia Caselaw
GILLIS v. ORKIN EXTERMINATING COMPANY.
68796.
POPE, Judge.
Action on contract. Emanuel Superior Court. Before Judge Hartley.
Fred B. Gillis brought this negligence action against Orkin Exterminating Company seeking damages for Orkin's allegedly negligent inspection and treatment of his home for termites and its failure to provide him with protection from termites as agreed upon by contract. Gillis sought as damages the estimated cost of repair of his home. Gillis later amended his complaint to add a count seeking punitive damages and attorney fees on the basis of Orkin's bad faith in allegedly forging his signature on certain documents, thereby misleading him as to the treatment he was actually receiving on his home. This appeal arises from the trial court's granting of Orkin's motion for summary judgment.
The record shows that Orkin first treated the Gillis home in 1973 for termite infestation and that Orkin thereafter inspected and retreated the premises regularly and as requested by Gillis. Gillis averred that in early 1978 an Orkin inspector informed him that the front part of his home was falling in, apparently due to damage caused by termites. The record also shows that in response to Gillis' first interrogatories, Orkin claimed to have treated the Gillis home, in part, as follows: "The soil adjacent to the inside foundation wall was trenched and was treated approximately six (6) inches deep with ORKILL. All piers were trenched approximately six (6) inches deep and treated with ORKILL . . . The concrete porch was drilled at approximately sixteen (16) inch intervals and soil beneath slab was flooded with ORKILL." In response to a second set of interrogatories, Orkin admitted: "The holes called for were not drilled as called for . . ., but an alternate method was used, that being the application of a short rod applying chemical from the side of the concrete area . . . The concrete porch could not be drilled because remodeling of the home made the concrete inaccessible with destruction of the property." The record also discloses a form filed by Orkin with the Georgia Department of Agriculture pursuant to rules and regulations promulgated pursuant to the Structural Pest Control Act, OCGA Ch. 43-45. This form lists eleven items which when each is checked "yes" "indicates work done to bring job up to minimum standards for reasonably effective termite control" as specified by the State of Georgia. Of the eleven items, two are checked "no" -- "Trenched inside foundation & around piers, chimney," and "On-grade slab(s) drilled or rodded." This form provides: "By signing below, the customer signifies that he understands that he will receive less than the minimum termite control job as specified by the State of Georgia." It is his purported signature on this form which Gillis contends was forged.
See Orkin Exterminating Co. v. Callaway, 126 Ga. App. 431 (190 SE2d 827) (1972). Compare Wilcher v. Orkin Exterminating Co., 145 Ga. App. 551 (2) (244 SE2d 101) (1978); Worth v. Orkin Exterminating Co., 142 Ga. App. 59 (3) (234 SE2d 802) (1977); and Orkin Exterminating Co. v. Stevens, supra, where in these three cases no evidence of negligent omission appeared of record. It follows that the trial court erred in granting Orkin's motion for summary judgment.
Robert S. Reeves, for appellee.
Millard B. Shepherd, Jr., for appellant.
DECIDED NOVEMBER 1, 1984.
Wednesday November 19 00:16 CST


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