Source: http://www.natlawreview.com, November 21, 2011
Bed bugs may be making fewer headlines these days, but that does not mean the critters — or the problems they present for companies — have been eradicated. Discovering an infestation is only the beginning; the legal fallout can last for years. Courts have recognized that state and local governments are not responding to the bed bug epidemic and have taken it upon themselves to force businesses to remedy infestations — or else.
Judges and juries have come down hardest on companies whose response they have deemed negligent. Most often, this means companies that have allowed patrons into known infestation areas, tried to treat an infestation using in-house employees instead of hiring professionals or used inadequate quarantine procedures to stop bed bugs from spreading.
For instance, in a case before a federal appeals court in Chicago, a judge ruled that hotel management rented rooms to guests despite having labeled the rooms in their computer system: “Do not rent, bugs in room” and “Do not rent until treated.” The court found that the punitive damages for renting rooms known to be infested was worth $1,000 for each room in the hotel.
In order to prevent negligent conduct, companies need a bed bug response plan. The costs associated with adopting and implementing a plan pale in comparison to the possible damages that could be awarded to an exposed patron by a sympathetic jury. Bed bug claims tried before a jury will favor plaintiffs since most jurors empathize with patrons and squirm at the thought of being covered with blood-sucking bugs. In addition to punitive damages, a wide variety of damages beyond the simple refund of a movie ticket or hotel bill are possible.
Plaintiffs may make claims for emotional distress and medical ailments caused by bed bugs. Furthermore, plaintiffs are aware that bed bugs can be transported back to their homes and will often demand that clothing, luggage and other property be entirely replaced even though it can be inexpensively treated to eradicate bed bugs.
The idea that all property that comes into contact with an infested area must be replaced is similar to the strategy to drive up damages employed by the plaintiffs’ bar in mold litigation. In mold cases, plaintiffs often claim that all of their furniture and personal property has been ruined, and some courts and juries have awarded significant damages.
A bed bug response plan that coordinates and directs your company’s effort can be used as evidence in a legal defense of your efforts to prevent bed bug infestations. Businesses in the hospitality and hotel industries should note that as bed bugs continue to spread, so will patron lawsuits. Defenses to these claims exist provided that proactive steps are taken to identify and remedy infestations.
There are at least seven elements that every plan should have. Abide by these and you are much less likely to be the one paying out the next large bed bug settlement in court.
1. Training for Front-Line Workers
With proper training, bed bugs can be detected with the naked eye. Therefore, all employees in vulnerable industries, particularly cleaning and maintenance staff, should be trained to identify evidence of an infestation. These employees are your front line of defense.
As part of your plan, each employee should, in writing, acknowledge their training and accept their responsibility to report evidence of bed bugs in accordance with protocol. This document, signed by each employee, should be maintained for your records. Proof that your company has a well-trained staff that inspects bed bugs on a daily basis is good evidence that you took reasonable steps to protect your patrons.
2. A Detailed Response
A step-by-step response plan should be created in the event that bed bugs are discovered. Otherwise, front-line workers may make uninformed, ad hoc decisions about how — or even whether — to respond. If poor employee decisions lead to customer harm, that harm will likely show up on your bottom line. Your response plan should detail how, and to whom, evidence of bed bugs must be reported.
It must also identify which employees will perform specific tasks, such as contacting a treatment professional, quarantining the area, notifying the next level of management, notifying risk managers or legal counsel, and maintaining any necessary documentation. Contact information for all employees with specific tasks, and for all other individuals who must be notified, should be included in the plan.
3. A Quarantine Protocol
Since bed bugs are able to squeeze behind openings around switches, electric sockets, light fixtures and vents, the perimeter of an affected area should be quarantined until a treatment professional has certified that it is free of bed bugs. All employees who have the ability to grant patrons access to a quarantined area should be notified that the area cannot be used until they are informed otherwise.
A plan should include employee notification and quarantine procedures, contact information for your treatment provider, and post-treatment inspection procedures to ensure that the area is bed bug free. Quarantine procedures must be effective. But they also should be subtle enough to not alarm patrons.
4. A Confidentiality Pledge
Employees should be trained to refer all questions about bed bugs to a specific manager. Employees can make damaging admissions to customers that can be used as evidence against a company during legal proceedings. Employees should be told to never discuss any matter related to bed bugs in an area where they might be overheard by guests, even if their conversation is not related to the facility.
If your company requires employees to sign a confidentiality agreement, consider revising it. Include a provision that treats details about your infestation, treatment history and inspection plans as protected confidential information.
5. A Partnership with a Qualified Treatment Professional
Many businesses have unsuccessfully treated bed bug infestations using in-house maintenance or cleaning personnel. Because of the limited effectiveness of current chemical options, complex physical treatments are often needed to eradicate an infestation. The use of a treatment professional demonstrates that your company took reasonable steps to remedy the problem and dramatically reduces the risk that the infestation will remain.
Retaining a professional to regularly inspect your facility will also increase response time in the event that an infestation occurs. Another added benefit is the fact that the contractor will become familiar with your facility and the treatment options that can be used within it. Bed bugs spread quickly, so ensuring that you can always receive fast and effective treatment should be a key feature of your plan.
6. Insurance Coverage
Insect infestation is generally excluded from property and general liability policies. Until very recently there were no insurance products that provided coverage for the associated costs of a bed bug outbreak.
But in 2011, a few insurers unveiled policies that cover the cost of decontamination, rehabilitation and profit losses due to business interruption. Such coverage may also include crisis management services that will manage communications with regulators, public health officials, the public and employees.
7. Retention of Legal Counsel
As certain plaintiff’s lawyers begin to specialize in this area of litigation, it is important to retain counsel experienced in the defense of bed bug claims — or at least similar claims, such as mold exposure or sick building syndrome. Bed bug claims are not similar to typical premises liability or trip-and-fall cases; they involve complex scientific, medical and legal issues.