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Exclusion in Termite Treatment and Repair Contract

Gustin v. Vulcan Termite and Pest Control, [Ms. 1190255, Oct. 30, 2020], ___ So. 3d ___ (Ala. 2020). The Court (Parker, C.J.; Bolin, Wise, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur; Bryan, J., concurs in the result; Shaw, J., concurs in the result and dissents in part) affirms in part and reverses in part the Jefferson Circuit Court’s summary judgment dismissing breach-of-contract and tort (negligence and wantonness) claims against Vulcan Termite and Pest Control arising from a termite treatment and repair contract. As to the contract claim, the Court concludes that “genuine issues of material fact existed as to whether the wood-to-soil exclusion applied and thus whether Vulcan breached its duty to repair.” Ms. *8. The exclusion applied only where termite damage resulted from wood being in direct contact with the soil. Vulcan’s expert admitted that although the termite-infested wood was below grade, it was separated from the soil by faux stone cladding. Ms. *7.

The Court affirms the dismissal of the tort claims, explaining “[t]he plaintiff’s tort claims were predicated exclusively on duties, actions, and omissions related to Vulcan’s performance of its termite-treatment contract. ‘[A] mere failure to perform a contractual obligation is not a tort.’” Ms. *10, quoting Barber v. Business Prods. Ctr., Inc., 677 So. 2d 223, 228 (Ala. 1996).

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