Terminix Brief To Vacate Award Annot

Case 1:19-cv-00553-JB-M Document 26 Filed 11/12/19 Page 1 of 28 PageID #: 1148
UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHEN DIVISION
ANN FAKENAM and LYNNE )

ANONYMOU )
)
Plaintiffs, )
)
v. )
) Case No. 1:19-cv-00553
THE TERMINIX INTERNATIONAL )
COMPANY, L.P., and TERMINIX )
INTERNATIONAL, INC., )
)
Defendants. )
TERMINIX’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE,

MODIFY, OR CORRECT THE ARBITRATOR’S AWARD
Defendants the Terminix Intl. Co., L.P., Terminix Intl., Inc. (“Terminix”) submit this Memorandum of Law in
Support of Motion to Vacate, Modify, or Correct the Arbitrator’s
Award. [TMX ignores that fraud and nonperformance invalid contracts and limits on remedies in fraudulently
induced contracts] INTRODUCTION
The Arbitrator’s $2.7 million Award against Terminix in this case is due to be vacated,
modified, and corrected.
First, the Arbitrator in this matter, Eugenia Benedict, has presided over eleven arbitration proceedings against
Terminix, all initiated by the same counsel. Whether due to sheer repetition of the same allegations against Terminix
or other factors, she has prejudged the claims against Terminix, copied and pasted from prior awards, and commingled
the cases in her mind and in her findings. This shows evident partiality and mandates vacating this award under the
FAA. [The arbitration association TMX PICKED chooses the arbitrator to hear cases, not the arbitrator or Campbell
Law PC] Second, Ms. Benedict exceeded her authority in awarding attorneys’ fees—in the sum of
$515,000—because there is no contractual obligation, statutory provision, or legal precedent

allowing for the award of attorney’s fees. The arbitration hearing and all of the events at issue occurred in Mobile, not
England. Accordingly, each party is to bear its own attorney’s fees. [Fraud allows shifting fees in Alabama]
Third, Ms. Benedict based her finding of liability—as well as the imposition of punitive
damages—explicitly on the tort of bad faith refusal to settle or pay a claim. There are two problems with this: (1)
Plaintiffs did not plead a bad faith refusal to pay or settle a claim until after the close of the evidence, leaving Terminix
no meaningful opportunity to defend itself from those allegations; and (2) there is no bad faith claim in Alabama outside
the context of an insurance contract. [Lightfoot Franklin’s Senior Partner - Gorman Houston as Sup. Ct. Chief Justice
said faking termite treatments and covering up resulting damage justifies $2 Million in punitive damages - see Jeter v
Orkin opinion] Fourth—and relatedly—the punitive damages award in this case is exactly the same amount as the
punitive damages award that Ms. Benedict entered in another arbitration against Terminix around the same
time (one initiated by the same counsel that represents the Plaintiffs). That punitive damages award is
explicitly tied to the bad faith allegations referenced above. Either Ms. Benedict prejudged Terminix’s
reprehensibility in this case (an egregious violation of Terminix’s rights) and imposed the same sanction that
she imposed against it in the earlier arbitration or she assessed reprehensibility on the basis of a claim that
does not exist. [So what? If punishment is justified why does it matter if $750,000 is awarded in two cases]
Regardless, the $750,000 in punitive damages cannot withstand this Court’s review.
Fifth, Ms. Benedict based portions of the Award on Plaintiffs’ consequential damages
and loss of enjoyment. The applicable contract effectively disclaimed these damages, however, and Ms. Benedict
exceeded her authority in refusing to enforce it. [Fraud voids damage limits in contracts in every state in America]
2
STATEMENT OF FACTS
I. The Parties, the Property, and the Termite Protection Plan
On November 29, 2012, Ann Fakenam and Lynne Anonymou (collectively “Plaintiffs”)
purchased a vacation home located at 204 Grant Street on Dauphin Island. See Ex. A,
Claimants’ Statement of Claims (“SOC”), ¶1.1 The home is an elevated wood frame house that
sits upon wood pilings that extend above a concrete slab. Id. ¶18. At the time of the sale, the
seller of the house transferred the Termite Protection Plan (the “Agreement”) between himself
and Terminix to Plaintiffs. See SOC ¶30; Ex. B, Termite Protection Plan Agreement (“the
Agreement”). The Agreement carried a base cost of $900 and a $225 annual renewal fee
thereafter. See SOC, ¶28. Plaintiffs renewed the Agreement each year from 2013 to 2017. See
SOC ¶¶28, 32.
The Agreement provided protection against termite damage that occurred after November
27, 2012. See Agreement, p. 3. As a “repair and replace” contract, the Agreement obligated
Terminix to reinspect annually and “upon notice and inspection, arrange for the necessary repairs
or replacement by a contractor chosen by Terminix and pay the entire cost of labor and
materials.” Id., p. DX003-3. The Agreement was not a guarantee against termites and contained
a limitation of liability clause, which expressly disclaimed specific categories of damage that
Plaintiffs would later seek to recover from Terminix:
Except as otherwise prohibited by law, Terminix disclaims and

shall not be responsible for any liability for direct, indirect, special,
incidental, consequential, exemplary, punitive, and/or loss of
enjoyment damages. The obligations of Terminix specifically
stated in this agreement are given in lieu of any other obligation or
responsibility, express or implied, including any representation of
merchantability or fitness for a particular purpose.

1
Exhibits referenced herein are contained in Terminix’s contemporaneously-filed Evidentiary Appendix in Support
of Motion to Vacate, Modify, or Correct the Arbitrator’s Award.
3
Id., p. DX003-6.
II. Treatment and Repair History
Terminix does not have documentation to prove that it performed an initial termiticide
treatment when it placed the house under contract in 2012. For that reason, Terminix has
consistently acknowledged that it is liable to the Plaintiffs for some amount. However, Terminix
performed the required annual termite inspections of the house in 2013, 2014, 2015, and 2016.
See Ex. C, Compiled Reinspection Tickets. On December 5, 2016, during a pest control
inspection of the home, a Terminix inspector discovered termites in the downstairs washroom.
See Ex. D, Dec. 5, 2016 Reinspection Report. Shortly thereafter, on December 23, 2016,
Terminix treaters went to the house to provide a full comprehensive termiticide treatment. They
spent four and a half hours, from 9:00 a.m. to 1:30 p.m., developing a plan for treatment and
treating the structure. See Ex. E, Dec. 23, 2016 WDO Application Record.
On December 31, 2016, Terminix opened a damage claim and began the process of
arranging and paying for repairs to the home under the terms of the Agreement. For the next
several months, Terminix, including service managers Robert Steele and Ken Stroh, worked with
Plaintiff Fitzgerald toward finding and repairing the damage in the house, as agreed in the
parties’ contract. See Ex. F, Repair Efforts: December 2016-December 2017. During this time
period, contractors uncovered a previously hidden expansion joint in the washroom area, and
Terminix dispatched another treater to provide additional treatment to that area. See Ex. G, May
7, 2017 WDO Application Record; Ex. H, Transcript of Proceedings Jan. 22-25 (“Tr.”), pp.
1274-92, 1296-99; Ex. I, Drilling Photographs.
Then, in the summer of 2017, building inspector Corey Moore informed Plaintiffs and
Terminix of Dauphin Island’s “50% rule,” pursuant to which a structure in need of repairs that
4
would cost more than 50% of the damaged structure’s value must be razed and rebuilt, as opposed to repaired. Tr.
898-99. Faced with this unexpected and unusual issue, Ken Stroh turned to Rick Skolnik in Terminix’s home office in
Memphis, who determined that Terminix should offer to pay the value of the home. Tr. 440-41, 895. Mr. Skolnik
tasked Mr. Stroh with finding an appraisal of the home to determine a reasonable offer. Tr. 509-13. When Mr. Stroh
could not locate an appraiser, Mr. Skolnik considered the tax assessor value of the home. Tr.
972-73. Mr. Skolnik then recommended that Terminix offer to pay the full tax-assessed value of the structure as a
resolution of the Plaintiffs’ damage claim. Tr. 1018-19. This process resulted in Terminix offering to pay Plaintiffs
$72,700, and inviting Plaintiffs to accept or dispute the
offer. See Ex. J, November 3, 2017 Letter from Ken Stroh to Lynne Fitzgerald. Terminix sent follow-up emails to
Plaintiffs on December 1, 2017 and January 12, 2018, asking Plaintiffs for an update on the outstanding offer. Tr.
1203-07, 1211-16. Plaintiffs did not respond to Mr.
Stroh. Tr. 1214-16. [TMX’s President, not Skolnik, decided to disregard the replacement promise in the contract.]
III. Claims Asserted, Relief Sought, and Award Entered
Unbeknownst to Terminix, before Mr. Stroh sent his November 3, 2017 letter, Plaintiffs
retained counsel. Tr. 1212. They filed their Statement of Claims in arbitration on September 14,
2018, alleging claims against Terminix, as well as its service manager, Ken Stroh. See SOC ¶¶2-
4 (Ex. A). Plaintiffs alleged three substantive counts: (1) fraudulent misrepresentation and
suppression, including promissory fraud; (2) negligent hiring, training, supervision, and
retention; and (3) a claim for equitable relief pursuant to the alleged “made whole” doctrine. Id.,
¶¶102-122. Plaintiffs did not state or assert a claim for bad faith refusal to pay or settle a claim.
Id. Nor did the Plaintiffs assert a claim for breach of contract. See generally id. They sought
compensatory damages (including mental anguish), incidental, consequential, and punitive
5
damages, along with equitable relief, costs, and attorney’s fees. Id., pp. 22-23. The case was
assigned to Arbitrator Eugenia Benedict (“Ms. Benedict”), and a hearing in Mobile, Alabama
was held over four days in January 2019. See generally Tr. (Ex. H). Soon after the hearing
concluded, the parties submitted closing briefs at Ms. Benedict’s request. Therein, Plaintiffs
asserted a new and additional claim for bad faith failure to pay an insurance claim. See Ex. K,
Fitzgerald/McLaurin v. TMX Claimants’ Closing Argument and Brief, pp. 15-16. Terminix
opposed the untimely addition of this novel claim. See Ex. L, Post-Hearing Brief and Closing
Argument of Respondents, the Terminix International Co., L.P. and Kenneth Stroh, pp. 41-44.
Ms. Benedict issued a final Award on August 14, 2019. See Ex. M, Arbitrator’s
Decisions on Motions to Exclude Documents and Testimony and Award, Ann Fakenam, Lynne
Anonymou. Terminix International Co., L.P., et al., Case No. 01-18-0001-1064 (Aug. 14, 2019)
(“McLaurin Award” or “Award”). In that award, Ms. Benedict granted various motions that
Terminix made during the hearing pertaining to other lawsuits against Terminix and
acknowledged the impropriety of conflating the multiple cases against Terminix:
During the trial of this case, Respondent Terminix’s counsel made

numerous objections to Claimants’ counsel or co-counsel offering
or attempting to offer any evidence of previous cases against their
client. Most, if not all, of those objections were sustained at trial.
Any other such objections made thereafter are granted herein, and
no such verbiage, whether in the form of documents or testimony
about previous cases has been considered. Any mention of the
testimony of witnesses who appeared in previous cases and not in
the instant one is stricken and any attorney who included such in
any post hearing document is warned not to repeat such an error in
the future.
See Award, p. 1. Ms. Benedict went on to make the following itemized award:
Compensatory (demolition and rebuilding house) $275,000

Incidental damages $27,9002

2
The incidental damages award consisted of a number of discrete elements: termite services paid for 2012-2014
($675); termite services paid for 2015-2017 ($723); architectural fees ($600); power ($2000); water ($880); yard
6
Mental Anguish
Lynne Fitzgerald $900,000
Anne McDonald [sic] $300,000
Punitive Damages $750,000
Attorney Fees $500,000
Attorney Expenses $ 15,000
TOTAL $2,767,900
Id., pp. 19-20. As to Mr. Stroh, Ms. Benedict found that there was no basis for
personal liability and dismissed the claims against him. Id., p. 14.
IV. Ms. Benedict’s History of Presiding Over Cases That Claimants’ Counsel Has Filed
Against Terminix and of Making Awards Adverse to Terminix
Ms. Benedict has had an extraordinary—and problematic—level of exposure to various
claims that Plaintiffs’ counsel has filed on behalf of termite control customers against Terminix.
All told, the AAA has assigned at least eleven of these cases to her. See Composite Ex. N,
Compiled Arbitrator Appointment Documents. She has presided over three full evidentiary
hearings on the merits—the hearing in this case, and the hearings in Siegel and Weatherby—and
has entered significantly and increasingly adverse rulings in each. See Ex. O, Award of
Arbitrator, Dr. & Mrs. Jonathon Siegel v. The Terminix International Co., Inc., Case No., 01-17-
0000-0397 (Sept. 6, 2018) (“Siegel Award”); Ex. P, Award of Arbitrator, Patricia Weatherby v.
The Terminix International Company, Inc., et al., Respondents, Case No. 01-17-001-8761 (Apr.
25, 2019) (“Weatherby Award”). Though each matter has involved different properties, different
degrees of damages, and a different history of treatment, the same counsel has represented the
claimants in each of these cases, and the same evidentiary script has been essentially recycled in
each case. See Ex. Q, Statement of Claims, Jonathon and Danielle Siegel v. The Terminix

maintenance ($300); campground lot rental ($3434); campground lot ($6000); early 2017 repairs on home ($300),
gas for vehicles ($3633); automobile wear ($6000); trash service for three months ($375); storage unit rental fees
($2580); and costs for re-landscaping after reconstruction ($400). These damages totaled $29,800.
7
International Co., L.P., Terminix International, Inc. and Ken Stroh, No. 01-17-0000-0397 (Sep. 14, 2017) (“Seigel
SOC”); Ex. R, Summary of Claimants’ Initial Statement of Claims, Walter and Patricia Weatherby v. The Terminix
International Co., LP, No. 01-17-0001-8761 (Oct. 9,
2017) (“Weatherby SOC”). See also Ex. S, Comparison of Fakenam Statement of Claim with Prior Statements of
Claims. [An arbitrator in a firm that used to represent TMX also found its conduct is fraudulent - a convenient fact
for Terminix to ignore.] STANDARD OF REVIEW
The Federal Arbitration Act (“FAA”) enumerates the grounds for vacating an arbitration
award. They are:
(1) where the award was procured by corruption, fraud, or undue

means;
(2) where there was evident partiality or corruption in the

arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to

postpone the hearing, upon sufficient cause shown, or in refusing
to hear evidence pertinent and material to the controversy; or of
any other misbehavior by which the rights of any party have been
prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly

executed them that a mutual, final, and definite award upon the
subject matter submitted was not made.
See 9 U.S.C. § 10(a).
As the United States Supreme Court has held, arbitrators “not only must be unbiased but
also must avoid even the appearance of bias” in order to maintain confidence in the arbitration
system. See Commonwealth Coatings Corp. v. Continental Cas. Co., 393 U.S. 145 (1968).3 The

3
The Consumer Due Process Protocol (“the Protocol”) was “developed in 1998 in cooperation with representatives
from governing agencies, consumer interest groups, education institutions, and businesses.” See AAA Practice
Areas—Consumer (https://www.adr.org/consumer). This protocol unambiguously states: “The goal of the Protocol,
in concert with the AAA Consumer Arbitration Rules, is to ensure evenhandedness in the administration of
consumer-dispute resolution.” While an arbitrator may have knowledge of the parties before it and may even have
“views on certain general issues likely to arise in the arbitration, an arbitrator may not have prejudged any specific
8
FAA provides that district courts may vacate an arbitral award “where there was evident
partiality or corruption in the arbitrators, or either of them.” 9 U.S.C. §10(a)(2). The Court of
Appeals for the Second Circuit has interpreted the FAA to provide that “evident partiality within
the meaning of 9 U.S.C. §10 will be found where a reasonable person would have to conclude
that an arbitrator was partial to one party to the arbitration.” See Scandinavian Reinsurance Co.
Ltd. v. St. Paul Fire and Marine Ins. Co., 668 F.3d 60, 72 (2d Cir. 2012) (quoting Morelite
Constr. Corp. v. N.Y.C. Dist. Council Carpenters Benefits Funds, 748 F.2d 79, 84 (2d Cir.
1984)). A conclusion of partiality can be inferred “from objective facts inconsistent with
impartiality.” See Morelite, supra, 748 F.2d at 84; Pitta v. Hotel Ass’n of N.Y.C., Inc., 806 F.2d
419, 423 n. 2 (2d Cir. 1985). The Eleventh Circuit Court of Appeals has described the exacting
standard of impartiality that should be applied to arbitrators:
Section 10 of the Federal Arbitration Act provides that a federal

district court may vacate an arbitration award “[w]here there was
evident partiality or corruption in the arbitrators….” 9 U.S.C.
§10(a)(2). This rule is meant to be applied stringently. As the
Supreme Court emphasized in the seminal case of Commonwealth
Coatings Corp. v. Continental Cas. Co., courts “should, if
anything, be even more scrupulous to safeguard the impartiality of
arbitrators than judges, since the former have completely free rein
to decide the law as well as the facts and are not subject to
appellate review.
See University Commons-Urbana, Ltd. v. Universal Constructors, Inc., 304 F.3d 1331, 1338 (11th Cir. 2002). [Numerous
cases hold that whining about the amount of an award cannot support a claim of bias or misconduct by an arbitrator.]
ARGUMENT
I. The Arbitrator’s Award is the Product of Partiality and Apparent Bias.
A. Ms. Benedict Prejudged Terminix and Recycled, Regurgitated, and Cut and
Pasted From Prior Cases.

factual or legal determinations to be addressed during the arbitration.” See American Bar Assoc./College of
Commercial Arbitrator’s Code of Ethics for Arbitrators in Commercial Disputes commend to Canon I (“An
arbitrator should uphold the integrity and fairness of the arbitration process.”).
9
At the outset of the Award, Ms. Benedict noted that any evidence from previous cases
should be stricken and not considered:
During the trial of this case, Respondent Terminix’s counsel made

numerous objections to Claimants’ counsel or co-counsel offering
or attempting to offer any evidence of previous cases against their
client. Most, if not all, of those objections were sustained at trial.
Any other such objections made thereafter are granted herein, and
no such verbiage, whether in the form of documents or testimony
about previous cases has been considered. Any mention of the
testimony of witnesses who appeared in previous cases and not in
the instant one is stricken and any attorney who included such in
any post hearing document is warned not to repeat such an error in
the future.
Award, p. 1.
Ms. Benedict then disregarded her own “warning” about the obvious “error” that results
from recycling from prior, separate cases, when she copied and pasted more than 10 paragraphs
of findings and conclusions from her prior Siegel and Weatherby awards against Terminix and in
favor of claimants represented by Plaintiffs’ counsel. See Ex. T, Comparison of McLaurin
Award to Prior Awards. Ms. Benedict went beyond simply regurgitating legal principles; she
reached the same factual conclusions—word for word in many instances—that she reached in
2018 in Siegel and in April 2019 in Weatherby. As just a few examples, Ms. Benedict reached
the following factual findings in consecutive arbitration awards against Terminix:
 “Terminix did not disclose their failure to treat and the [Claimants] were deceived
about the validity of the service that had been sold to them, relied on Respondent
Terminix’s assertion that they were protected and were harmed.” See Ex. M,
McLaurin Award, p. 11; Ex. P, Weatherby Award, p. 7; Ex. O, Siegel Award, p. 3
(stating “the Siegels were thereby deceived about the validity of the service they were
or were not receiving.”).
 “The evidence and testimony developed at trial clearly showed that [Terminix] knew
it had not provided the services in its contract with the [Claimants] and each renewal
period thereafter when the promised [sic] were renewed.” See Ex. M, McLaurin
Award, p. 12; Ex. P, Weatherby Award (even down to the same misspelling of
10
“promised”), p. 7; Ex. O, Siegel Award, p. 3 (stating “Based on the evidence and

testimony presented at the hearing, there is no doubt that Terminix knew it had not
provided the services in its contract with the Siegels and each annual renewal period
thereafter when the promises were renewed.”)
 “It is obvious that [Terminix] was the party with superior knowledge here, knew
damage was occurring… and that the [Claimants] home was being destroyed but did
not take corrective action proves more than Negligence; it is callousness to a
malicious degree.” See Ex. M, Fakenam Award, p. 13; Ex. P, Weatherby Award, p.
8. [If there was also the same evidence of fraud in other cases - as there was - there is nothing wrong with accepting it]
This is particularly troubling, given that entirely different Terminix branches were responsible for servicing and treating
the home in Weatherby and the Plaintiffs’ home. Weatherby involved Terminix’s Gulf Shores branch and an initial
contract date of 1998. See generally Ex. R, Weatherby SOC. The current case involves the Mobile branch and an
initial contract date of 2011, with different managers, personnel, and treaters than those involved with the Weatherby
home. Compare id. with Ex. A, SOC. Despite these critical differences, Ms. Benedict found that entirely separate sets
of actors, in different time frames, from different branches are “guilty” of the same exact conduct using the same
conclusions. And she imposed identical—to the penny—punitive damages awards. [TMX fails to explain why it helps
its case that proof shows it commits fraud in other branches and since the fraud is required by the home office -
nobpdy could complain that this is unexpected - if increases the need for punishment. It does not excuse misbhavior.]
And not only did Ms. Benedict copy and paste from previous awards in entering the Award in this case, she
commingled the facts of the cases and imbued the Award in this case with elements from other cases, despite her own
warning against doing just that. For example,
Ms. Benedict stated in the Award that “[i]t is obvious that Respondent Terminix was the party with superior
knowledge here, knew damage was occurring and that the Claimants’ home was being destroyed but did not take
corrective action proves more than Negligence.” See Award, p. 13. However, Plaintiffs did not assert a claim for
negligence. See generally SOC. The Claimants in Weatherby, however, did assert a claim for negligence. See
Weatherby SOC (Ex. R), ¶35. [Judge did not find liability on unplead causes of action, she appropriately explained
that being regulated in a specialized field creates the special duty to tell the truth instead of concealing cheating.]
11
Similarly, Benedict awarded $300,000 in damages for emotional distress and mental
anguish to Ann McDonald. See Award, p. 20. Presumably, she intended that award for Anne Fakenam, but used the
name McDonald, which is the name of a claimant in yet another of the arbitrations filed by the Plaintiff ’s counsel’s
firm against Terminix to which Benedict has been assigned. See Ex. N. [Terminix is so desperate that it uses a typo as
evidence of fraud - “McDonald and one of these victims real name were very similar.]
B. Ms. Benedict’s Continually Increasing Awards Demonstrate Partiality; Her

Refusal to Apply Contract Terms, Her Disregard of Alabama Law, and the
Outsize Emotional Distress Award in this Case Can Only Be Justified by
Bias.
In this case, Ms. Benedict continued her trend of increasing the damages against
Terminix, this time to more than $2,767,900.00. See Award, Ex. M. For context, the cost to replace the Plaintiffs’ entire
home was only $250,000.00, according to the terms of the Award. See id., p.14. This trend creates the reasonable
perception of partiality in favor of Plaintiffs’ counsel and against Terminix. In three awards (Siegel, Weatherby, and now
the Award in this case), Ms. Benedict has awarded $5,458,663.75 in damages against Terminix and in favor of the clients
of the Plaintiffs’ counsel. This sum includes $1,500,000.00 in mental anguish damages, which are prohibited under the
terms of the contracts at issue in these cases. [The value of the properties and damages caused increased from one case to
the next so the compensatory damages either had to increase or Judge Benedict would have had to ignore the evidence.]
Similarly, and perhaps most tellingly, two of these awards (the Award in this case and the Weatherby Award)
included a total of $862,152.75 in attorney’s fees and expenses awarded directly to Plaintiffs’ counsel, not a dime of
which was authorized by the contracts or any statute or applicable legal precedent. [Fraud allows shifting fees and has
in Alabama for 34 years. These victims’ lawyer, Tom Campbell worked on the case that set that precedent in the
1980’s.] Moreover, Plaintiffs’ counsel did not provide a single billing record to prove the hours of work spent in
preparing these cases for arbitration. These three awards, especially when taken together, demonstrate that Ms. Benedict
is unable or unwilling to apply the terms of the parties’ contracts or to apply applicable legal precedent. Further, the
massive attorney’s fee awards suggest that she is determined to compensate Plaintiffs’ counsel
12
handsomely, even without evidence of the work the law firm performed and even when there is no legal basis for
those awards.4 [The arbitrator saw the work Campbell Law PC did for years. TMX ignores that its lawyers said they would appeal any award over $1,000,000
II.facts.]
regardless of the The Attorney’s Fee Award Exceeds the Arbitrator’s Authority and Must Be
Vacated.
A. This is Not England. Each Party is Responsible for His or Her Own
Attorney’s Fees Absent Contract or Statute and There is Neither in this
Case.
Alabama follows the American rule: each party bears his or her own attorney’s fees.
See, e.g., City of Bessemer v. McClain, 957 So. 2d 1061, 1078 (Ala. 2006) (quoting Battle v. City of Birmingham, 656
So. 3d 344, 347 (Ala. 1995), Ex parte Horn, 718 So. 2d 694, 702 (Ala.
1998). See also Baker Botts, L.L.P. v. ASARCO LLC, 135 S.Ct. 2158, 2164 (2015) (“[The] basic point of reference
when considering the award of attorney’s fees is the bedrock known as the American Rule: Each litigant pays his
own attorney’s fees.”). [Fees can be based on a percentage when that is the normal means of compensation in
similar cases.] Plaintiffs relied on Ms. Benedict’s own prior awards and on language from Reynolds v.
First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238, 1242-1243 (Ala. 1985) to argue that
an exception to the American Rule applies. However, Ms. Benedict’s awards—the one in this
case and the ones in her other cases—are erroneous outliers. Two judges—Judge Patterson in
Smith v. Terminix, et al., CV-2016-901411.00 (Mobile Cnty.) (“Smith v. Terminix”) (Ex. V) and
retired Alabama Supreme Court Justice Robert B. Harwood in Morrison v. Terminix, et. al, No.

4
Plaintiffs’ counsel has also recently advertised yet another lavish award from Ms. Benedict in favor of the firm’s clients in a Mississippi
termite case against Orkin, Inc. In that case, Manning v. Orkin, Inc., AAA No. 01-17-0007- 3773, Ms. Benedict awarded a total of
$2,610,418.05 in damages against Orkin, including $631,445.05 in attorneys’ fees and expenses. Plaintiffs’ counsel has advertised the
Manning award in a number of ways, including numerous social media posts on multiple platforms, and the award itself has been covered by
at least one local news channel. See Ex. U, Award of Arbitrator, Wesley and Melissa Manning v. Orkin, Inc., No. 01-17-0007-3773 (July 29,
2019) (“Manning Award”). Notably, the Manning evidentiary hearing took place the week between the hearings in
Weatherby v. Terminix (heard January 8-11, 2019) and McLaurin v. Terminix (heard January 22-25, 2019). Thus,
Plaintiffs’ counsel spent three straight weeks in January 2019 with Ms. Benedict in termite-related arbitrations, with those hearings resulting in
Ms. Benedict’s awarding that firm a total of $1,493.597.80 in attorneys’ fees and
expenses. Ms. Benedict’s grand total for awards in favor of Plaintiffs’ counsels’ clients—four awards in less than
one year—has now risen to $8,069,081.80. [Terminix elects to ignore the fact that the neutral arbitration forum picks the arbitrator and
that “Ms.” Benedict is a retired trial judge from Georgia who has no connection - outside of her role listening to evidence of fraud - the
Campbell Law PC. Orkin admitted cheating thousands of Mississippi customers the same way it cheated the Mannings - promising a full
13 false reports with regulators.]
treatment and doing a partial one and ordered clerks to cover it up by filing
01-18-0000-4332 (Ex. W) were correct in rejecting claims for attorney’s fees in other cases
against Terminix, as were the arbitrators in Scott v. Terminix, et. al., No. 2010-903755 (Ex. X)
and WAV Properties, LLC v. Terminix, et al (Ex. Y).
Moreover, Reynolds does not create a new exception to the general rule against recovery of attorney’s fees.
The Alabama Supreme Court has never applied Reynolds to allow for an award of attorney’s fees in a simple fraud
case like this one. Instead, Alabama courts have limited the holding in Reynolds only to common fund/common
benefit situations or in cases of special equities. See, e.g., Cory v. Carpenter, 510 So. 2d 546, 549 (Ala. Civ. App.
1986) (“[W]e do not consider Reynolds to be apt authority for the award of an attorney’s fee to a winning party in a
fraud case not involving a common fund.); cert. denied in Ex parte Carpenter, 510 So. 2d 549 (Ala. 1987); see also
Alliance Ins. Co. v.
Reynolds, 504 So. 2d 1215, 1216 (Ala. Civ. App.
1987) (“In Alabama, attorney’s fees are recoverable only where authorized by statute, when provided in a contract, or by
special equity, such as in a proceeding where the efforts of an attorney create a fund out of which fees may be
made….”); Smith v. GTE Corp., 236 F.3d 1292, 1309 n. 16 (11th Cir. 2001). These facts or circumstances do not exist
here. [Ala’s Sup. Ct. - after GTE opinion - says fraud allows fee shifting - TMX ignores. So 11th Cir. got it wrong.]
And importantly, the Alabama Supreme Court has reversed an arbitrator’s award of
attorney’s fees, holding that such an award exceeded the arbitrator’s powers. In Guardian
Builders, LLC v. Uselton, 154 So. 3d 964 (Ala. 2014), the Alabama Supreme Court held that an
artrator’s award was due to be reversed because it awarded attorney’s fees to the prevailing party
in the absence of a statute, agreement, or “other equitable reasons.” Guardian Builders, LLC v.
Uselton, 154 So. 3d 964 (Ala. 2014).
We agree with Guardian that the arbitrator exceeded his authority

by awarding the Useltons attorney fees. The [applicable] rules
expressly state that the arbitrator’s authority is limited by the scope
of those rules and that he or she “may award any remedy that is
14
permitted under applicable law.” This is to say that the arbitrator

may award only those remedies permitted by applicable law, in
this case, Alabama law….Alabama generally follows the American
rule, which provides that parties are responsible for their own
attorney fees, and no argument has been made indicating that the
facts of this case warrant an exception to the application of that
rule based on the existence of a relevant statute or agreement
authorizing an award of attorney’s fees, or for other equitable
reasons.
Id. (emphasis added). The evidence presented in this case does not establish malice or any other equitable reason to
award attorney’s fees or expenses. [TMX ignores that there was

no fraud in the Guardian case so fee shifting
wasn’t allowed.] B. To the Extent Plaintiffs Would Rely on a “Made Whole” Claim to
Support a Claim for Attorney’s Fees, No Such Claim Exists Under
Alabama Law and Plaintiffs Failed to Demonstrate (and Ms. Benedict
Failed to Find) That Money Damages Were an Inadequate Remedy.
Terminix anticipates that the Plaintiffs may hinge their claim for attorney’s fees on the
equitable “made whole” claim they allege in the Statement of Claim. See SOC, Ex. A, ¶¶115-
122. Plaintiffs cannot do so for two reasons, however. First, Alabama law does not recognize
this ostensible cause of action. In Carr v. Haralson Termite & Pest Control Inc., No. 18-1373,
2018 WL 5084848 (N.D. Ala. Oct. 18, 2018) (Ott, J.)—a case asserting comparable claims
against a different pest control company—the court dismissed a “made whole” claim with the
following explanation:
[T]he “made whole” doctrine is not a cause of action under

Alabama law. Instead it is a principle of damages where if money
cannot adequately compensate a Plaintiff, the court may be able to
award equitable damages to the Plaintiff. It is not a principle or a
claim under which a Plaintiff may seek relief. And, even if the
Plaintiff could assert a claim under the “made whole” doctrine, it is
inapplicable here. The court cannot find one Alabama case, and
Plaintiff does not cite to any, where the “made whole” doctrine
was applied outside the insurance/subrogation context.
Id. at *6.
15
Moreover, it is Equity 101 that an equitable claim is available only where money damages are an inadequate
remedy. See Nat’l Life & Accident Ins. Co. v. Propst, 219 Ala. 437 (1929) (stating: (1) “The doctrine is settled that
the exclusive jurisdiction to grant purely equitable remedies, such as cancellation, will not be exercised . . . in any
case where the legal
remedy, either affirmative or defensive, which the defrauded party might obtain, would be
adequate, certain, and complete”; and (2) “fraud itself is never a distinctive ground of equity
jurisprudence”) (internal quotations omitted). There was no finding in the Award and no showing at the hearing that
money damages were not an adequate remedy. As a result, no equitable claim is available and—to the extent
Reynolds would allow for an award of attorney’s fees in equitable contexts, it would not allow for the attorney’s fees
award here. [TMX ignores that in the Tiger Oil opinion equity claims are allowed where legal remedies existed.]
III. The Award Is Based in Part on a Tort of Bad Faith Refusal to Pay or Settle a
Claim. This “Claim” Was Unpled, Unproven, and Terminix Had No Opportunity
to Present Evidence to Oppose It.
Plaintiffs did not plead a claim for the tort of bad faith in their Statement of Claims. See generally SOC, Ex. A.
Nevertheless, after the close of all the evidence, Plaintiffs purported to add that claim. See Ex. K, Fitzgerald/McLaurin
v. TMX Claimants’ Closing Argument and
Brief, pp. 15-16 (“Although no tort of ‘bad faith failure to pay an insurance claim’ is plead, the pleadings may be
conformed to proof, and this agreement is the equivalent of an insurance agreement under the definition of an insuring
agreement for purposes of the tort and is punishable.”). [Judge Benedict did not hold that she awarded damages for a
bad faith claim - she appropriately found that the CEO failing to pay the claim by rebuilding the house showed malice
and oppression.] However, even if there had been any evidentiary “proof” at the hearing, this claim does
not exist under Alabama law. No Alabama court has ever held that Terminix’s service
contract—or any other similar service contract—is subject to a claim for bad faith breach of
contract or bad faith failure to pay. And the Agreement is not akin to an insurance contract: it is
16
for termiticide treatment, annual inspections, and the repair of damage caused by termites. See generally Agreement,
Ex. B. In fact, the Agreement states that it does not guarantee against
termites. See id., p. DX 003-6. To the extent that a termiticide treatment agreement could give rise to a bad faith claim
like those in the insurance context, that claim is for the Alabama Supreme Court or Alabama Legislature to articulate.
In validating Plaintiffs’ theory of liability in this regard—and in awarding punitive damages on the basis of that theory
—the Arbitrator exceeded her authority. [The “bad faith” tort is based upon the fact that inexcusable refusal to pay a
valid claim shows malice and is analogous to TMX’s CEO denying this claim - even Skolnik could not explain any
good justification.]In the post-hearing submission in which they articulated this claim for the first time,
Plaintiffs relied on Schoepflin v. Tender Loving Care Corp., 631 So. 2d 909 (Ala. 1993) for the
notion that a bad faith failure to pay an extended car warranty claim applies to service contracts
like Terminix’s. In Schoepflin, the Alabama Supreme Court held that a bad faith failure to pay
claim could lie for failure to pay for repairs covered by a new car extended warranty plan,
because the warranty plan exhibited the same characteristics as an insurance contract. See id. at
910-12. This is vastly different than a guaranty provided by a service provider for the contracted
service it provides. The Alabama Supreme Court has expressly refused to extend the availability
of bad faith claims in other contexts. See Sanders v. Colonial Bank of Ala., 551 So. 2d 1045,
1046 (Ala. 1989) (collecting cases). As the Court stated in Peninsular Life Insurance Co. v.
Blackmon—which is heavily cited in Schoepflin: “The tort of bad faith refusal to pay a claim has
heretofore been applied only in those situations where a typical insurer/insured relationship
existed . . . We are very hesitant to expand the tort beyond these narrow circumstances.” 476
So. 2d 87, 89 (Ala. 1985) (emphasis added).
Likewise, the Southern District of Alabama, applying Alabama law, refused to extend the
tort of bad faith to Aetna’s (an insurer) refusal to pay disability benefits as the servicer of an
17
employee’s disability insurance plan. See Williams v. Aetna Life Ins. Co., No. 2:12-0258-KD-B,
2013 WL 593505, *9 (S.D. Ala. Jan 30, 2013). In Williams, Aetna discontinued plaintiff’s
disability benefits, and plaintiff sued Aetna for bad faith failure to pay. On Aetna’s motion to
dismiss, the court held, because “Aetna’s contract with [plaintiff’s employer] is a service
contract for the administration of the disability plan as opposed to a contract for insurance,”
plaintiff could not make out a bad faith claim. Id.5
Hicks v. Alabama Pest Services, Inc., 548 So.2d 148 (Ala. 1989), is also illustrative.
There, a homeowner sued a termite treatment company, the company’s owner, and the
company’s insurance carriers alleging various forms of misconduct related to the alleged
inadequate treatment of the home for termites. In affirming the trial court’s entry of summary
judgment in favor of all defendants on the claim of bad faith, the court stated that the claim failed
because the homeowner was not suing his own insurer: “As to the allegation of bad faith, there is
absolutely no evidence that Hicks had an insurance contract with any defendant…. Accordingly,
no cause of action sounding in bad faith is available against any of these defendants.” See Hicks
v. Ala. Pest Serv., Inc., 548 So.2d 148, 150 (Ala. 1989) (citations omitted).
While the Award does not make an explicit finding of liability on a claim for bad faith, it
draws extensively from facts and evidence that could only support that claim. This raises a
critical question: if Ms. Benedict did not impose liability and punitive damages based on some
bad faith claim, why does the Award recite so many facts and circumstances that mimic the

5
Even if there were a cognizable cause of action that had been properly pled, the evidence would not support a
finding that Terminix was liable for bad faith failure to pay or settle. Terminix did not fail to pay any claim; it was
instead trying to pay the Plaintiffs. See Ex. J, Nov. 3, 2017 Letter. Terminix invited Plaintiffs to either accept or
dispute the offer, but they never responded in any way and had retained counsel by the time the letter was sent. Tr.
1212-1216. Plaintiffs had every right to refuse to respond or engage, but having done so, they cannot prevail on
some tort of bad faith refusal to pay or settle now.
18
allegations in a bad faith case? Ms. Benedict’s own explanation for the Award is replete with
references to conduct pertinent to bad faith claims against insurers: [The cited conduct also justifies the finding of malice
to justify punitive damages.]
 The Claimants’ contract with Respondent Terminix does not state an option for the
company to offer a cash settlement rather than replace the house if it is unrepairable.
See Award, Ex. M, p. 8;
 The letter offering the cash settlement did not contain any suggestion of possible
negotiation. Id.
 In arriving at a figure to offer the Claimants for their unrepairable house, Mr.
Skolnick [sic] testified that he had not consulted a property appraiser to determine the
property’s market value both before and after the termite damage; consulted a
contractor to determine the estimated cost of rebuilding and doing so to the stricter
Code about to go into effect; had not learned the cost the Claimants had paid for the
house or looked beyond the Mobile County tax records to determine the actual market
value of the property. Id.
 The Claimants had paid…$213,000 for their prime waterfront lot and house in 2012
and had the structured insured for…$140,000, but Mr. Skolnick [sic] never asked
them for that information. Id.
 Respondent Terminix, through its national termite claims manager, Richard Skolnick
[sic], willfully and intentionally refused to get an evaluation of the true pre-damage
market value of their house. Id., p. 9.
[sic], who deals with resolving termite claims nationwide, knew or should have
known that a tax record does not indicate the actual market value of a house. Id.
[sic], willfully and intentionally refused to obtain even an estimate of the actual cost
that it would take to rebuild the Claimants’ home, id.
[sic], and its senior officials, willfully and intentionally offered the two elderly female
Claimants an unreasonably small sum as a final settlement with no intention for the
amount to be sufficient for them to rebuild their home, id. (emphasis added
throughout).
And critically, Ms. Benedict uses two pieces of this exact type of evidence to justify the punitive
damages award against Terminix:
Respondent Terminix deserves punitive damages for the following

reasons…(5) its refusal to determine an accurate market value of
19
the Claimants’ pre-damaged property before making an offer of a cash settlement; [and] (6) its offering a cash settlement
rather than its obligation to “repair” or “replace” without authority from the
parties’ contract to do so. [Instead of honoring the termite bonds express promise to rebuild the house at a cost of
$250,000, the CEO decided to offer $70,000 cash if the victim would keep the settlement secret - Terminix offered no
justification for this at trial. The company simply wished it had not made that deal and that it could run over the elderly
victims.] See Award, p. 16.
This evidence does not relate to any of the substantive claims that Plaintiffs asserted in
their Statement of Claims. See generally SOC (Ex. A). Plaintiffs did not bring a breach of
contract claim, so Ms. Benedict’s references to the terms of the contract could have no bearing
on that theory of liability. This evidence does not pertain in any way to a duty, a breach, or
causation related to negligent hiring, training, or supervision, so it cannot relate in any way to the
Plaintiffs’ negligence-based claim. And there can be no logical or legal connection between any
of this evidence and any of Plaintiffs’ various fraud claims. There is no allegation that the
November 2017 Letter or subsequent emails contained an intentional misrepresentation or that
the Plaintiffs took any action in reliance upon these communications. In fact, Plaintiffs did not
respond in any way to the offer and filed suit instead.
This evidence can be taken to relate only, then, to a claim for bad faith refusal to settle or
to pay a claim. Indeed, it is precisely the type of evidence that is used to bolster such claims.
See Watson v. Life Ins. Co. of Ala., 74 So. 3d 470, 476 (Ala. Civ. App. 2011) (quoting Singleton
v. State Farm Fire & Cas. Co., 928 So. 2d 280, 283 (Ala. 1981) (“In the ‘abnormal’ case, bad
faith can consist of . . . intentional or reckless failure to investigate a claim . . . [or] intentional or
reckless failure to properly subject a claim to a cognitive evaluation or review . . . .”)). As set
forth above, however, no such cause of action exists outside of the insurance contract context in
Alabama. See Watson, 74 So. 3d at 476 (quoting Ex parte Safeway Ins. Co. of Ala., Inc., 990 So.
2d 344, 351 (Ala. 2008) (“Breach of an insurance contract is an element of a bad-faith-failure-
to-pay claim.”) (emphasis added)). Moreover, Plaintiffs did not plead this cause of action, and
20
Terminix was deprived of any meaningful opportunity to defend against this type of claim at the
hearing. Nevertheless, the text of the Award is clear: Ms. Benedict imposed liability on
Terminix on the basis of its conduct leading up to its offer (“never asked for that information;”
“refused to get an evaluation;” “does not indicate market value”) and on the terms of its offer
(“offering a cash settlement…without authority from the parties’ contract”). See Award (Ex. M),
p. 9. Worse, Ms. Benedict explicitly based the punitive damages award in this case on that same
type of conduct. This not only exceeds her powers, it embodies misconduct that prejudices
Terminix’s rights to a fair arbitration.
IV. In Recycling the Punitive Damages Award Entered in a Prior Case and Basing That
Award on a Claim to Which Terminix Is Not Subject to Liability as a Matter of
Law, the Arbitrator Exceeded Her Authority and Engaged in Misbehavior
Prejudicial to Terminix’s Rights.
As noted above, Ms. Benedict recycled various findings and conclusions from other awards in formulating the
Award in this case. Critically, the $750,000 in punitive damages that she awarded in this case is the exact same
amount of punitive damages that she awarded in the Weatherby case. Compare Award (Ex. M) with Weatherby Award
(Ex. P). This perfect parallel between the two awards indicates that the award in this case was a foregone conclusion
based on the award in the earlier case, and Ms. Benedict failed to engage in the requisite analysis before awarding
punitive damages. That egregious misbehavior violates Terminix’s rights to an impartial arbitration. See In re
Checking Account Overdraft Litig. MDL No. 2036, 685 F. 3d
1269, 1277 n.10 (11th Cir. 2012) (quoting Murray v. UFCW Int’l., Local 400, 289 F. 3d 297, 303 (4th Cir. 2002))
(acknowledging that “the goals of arbitration embodied by the FAA, which also seeks to ensure the impartiality of the
arbitration proceeding,” and stating further, “[b]y agreeing to arbitration in lieu of litigation, the parties . . . do not
forego their right to have their dispute fairly resolved by an impartial third party.”). [Bank robbers and rapists get
punished for each crime they commit. Likewise, the law of punitive damages in the civil context universally requires
punishment for each victimization and injury so muliple awards of punitive damages is what the law expects and
requires. Terminix cheated 32,000 bondholders in Mobile and should be punished for each act of fraud.]
21
It is a well-settled tenet of the law of punitive damages that the most critical factor in a punitive damages award is
the reprehensibility of the defendant’s conduct. See, e.g., Ala. River Grp., Inc. v. Conecuh Timber, Inc., 261 So. 3d 226,
271-72 (Ala. 2017) (quoting State Farm
Mut. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003)) (characterizing the reprehensibility of a defendant’s conduct as “the
most important indicium of the reasonableness of a punitive damages award”). Under Alabama law, any imposition of
punitive damages is held to the most exacting of evidentiary standards: the clear and convincing standard: [In Orkin v
Jeter, Alabama’s Chief Justice who now works for this law firm said cheating homeowners by not doing the termmite
prevention justifies Punitive damages may not be awarded in any civil action, except
civil actions for wrongful death…other than in a tort action where
10 times it is proven by clear and convincing evidence that the defendant
consciously or deliberately engaged in oppression, fraud,
compensatory wantonness or malice with regard to the plaintiff.
awards as See Ala. Code §6-11-20(a). See also Liberty Nat. Life Ins. Co. v. Sanders, 792 So. 2d 1069 (Ala.
puntive 2000) (citations omitted) (“Punitive damages must be supported by clear and convincing
damages.] evidence that the defendant consciously or deliberately engaged in oppression, fraud,
wantonness, or malice with regard to the plaintiff.”).
In order to arrive at the exact same amount of punitive damages in each of these cases,
however, Ms. Benedict would have to determine the very same levels of reprehensibility were
present in each case. It defies common sense, however, to accept that the very same extent of
reprehensibility was found between two cases with critically different facts. Note only these
factual distinctions between the two cases:
Weatherby McLaurin
1998 Initial Contract (See Ex. Z, Weatherby 2012 Agreement Initial Contract (See Ex. B,
Agreement; Ex. P, Weatherby Award, pp. 2- Agreement)
3.)
Contract was for a full “Comprehensive” Contract was for a more limited, “Defined
Treatment (See Weatherby SOC, Ex. R, ¶21; Post Construction Treatment” (See Ex. B,
Weatherby Agreement, Ex. Y) Agreement)
22
Home was slab construction (See Weatherby Home was built on support piers (SOC, Ex.
SOC, Ex. R, ¶14) A, ¶18)
Serviced by Terminix’s Gulf Shores branch Serviced by Terminix’s Mobile branch, with
(Ex. Y) different treaters and managers than those in
Gulf Shores (See generally Tr.)
Multiple prior termite damage claims and No allegations of prior damage claims or prior
retreatments in home’s history. See Ex. P, retreatments before subject damage was
Weatherby Award, pp. 2-3. found. See generally SOC, Tr.
Claimants paid for the cost of repairs Over several months, Terminix hired
themselves, and no formal damage claim was contractors to perform repair work to the
opened. See Ex. P, Weatherby Award, pp. 4- subject structure. See Ex. F, Repair Efforts:
5. December 2016-December 2017.
But assume that a perfect parallel of reprehensibility exist between these two cases applying the clear and
convincing standard of proof. In this case, the punitive damages award was based explicitly on conduct for which
Terminix cannot, as a matter of law, be held liable: a tort of bad faith refusal to pay or settle. Indeed, two of the factors
that Ms. Benedict recited in entering the punitive damages award relate to the bad faith refusal to pay “claim” that the
Plaintiffs purported to add after the hearing and in contravention of Alabama law. See Award
(Ex. M), p. 16 (noting “refusal to determine an accurate market value” and “offering a cash
settlement”). So even if the punitive damages award in this case was not arrived at based on some improper
prejudgment stemming from Ms. Benedict’s previous cases, it cannot now stand where two of the critical factors on
which it was based are not even actionable under Alabama
law.
[Cheating everywhere in the same way justifies punishing everywhere in the same way.]
V. The Arbitrator Was Bound by the Limitation of Liability Provision in the

Arbitration Provision and Exceeded Her Powers in Failing to Apply It.
The Agreement contained a limitation of liability clause, stating that “Except as
otherwise prohibited by law, Terminix disclaims and shall not be responsible for any liability for
direct, indirect, special, incidental, consequential…and/or loss of enjoyment damages.” See
Agreement, Ex. B, p. DX003-6. Plaintiffs did not prove at the hearing, nor did the Arbitrator
23
find, that this provision was unenforceable for any reason. Compare Terminix Intern. Co., L.P. v. Scott, 142 So.3d
512, 517 (Ala. 2013) (consequential damages and loss of enjoyment limitation not enforced due to Arbitrator’s
finding of fraudulent inducement). [Both fraud and non-performance void the damage limitations.]
In fact, the Alabama Supreme Court considered a limitation on incidental and
consequential damages in Sears Termite & Pest Control, Inc. v. Robinson, 883 So.2d 153 (Ala.
2003) and found it to be enforceable. In Sears, a contract between a homeowner and Sears
Termite & Pest Control (“Sears”) contained the following Condition of Coverage:
The liability of Sears for repairs under this Agreement shall not
exceed, in the aggregate and over the entire term of this
Agreement[,] including any extensions and removals, the sum of
$250,000. In no event shall Sears be responsible for repairs or
redecoration in areas not directly affected by or in the immediate
vicinity of termite damage or for indirect expenses or
consequential damages relating to the existence of termites or
termite damage.
See Sears Termite & Pest Control, Inc. v. Robinson, 883 So.2d 153, 154 (Ala. 2003). [The case did not involve proof of
fraud
or non- The Alabama Supreme Court reversed the trial court’s order denying Sears’s motion to
performance.]
compel arbitration. Id. at 159. The first issue the court considered on appeal was whether the
language precluding either party from recovering incidental or consequential damages rendered
the entire arbitration provision unconscionable. Id. at 155. After noting that the court had
previously held that a provision in an arbitration agreement prohibiting an arbitrator from
awarding punitive damages was void because it violated the public policy of Alabama, the court
noted that the service contract at issue did not mention punitive damages. Id. at 156. This was
sufficient to remove the case before it from the ambit of Ex parte Thicklin, 824 So. 2d 723 (Ala.
2002) and related cases.6

6
Terminix acknowledges that the limitation on liability provision in the agreement does not affect the punitive
damages analysis in this case.
24
Next, the court noted that—unlike punitive damages—the Alabama Legislature has not
enacted a statute pertaining to incidental and consequential damages. See Sears, 883 So.2d at
156. And while the Alabama Legislature did, via Ala. Code § 2-28-10.1, provide the
Commissioner of the Department of Agriculture and Industries with the ability and wide
discretion to promulgate rules and regulations requiring an applicant for a pesticide permit to
indemnify persons harmed by the application of pesticides, that did not amount to a public policy
in favor of providing a remedy for consequential damages for injuries sustained as a result of the
application of pesticides. Id. at 157.
Moreover, while the UCC is admittedly not generally applicable to contracts for the
application of pesticides and termite treatment, the court noted it to be persuasive that Alabama’s
version of the UCC “endorsed the validity of limitations on the recovery of consequential
damages so long as they are not unconscionable.” Id. at 158. The court was left, then, with
whether the exclusion of incidental and consequential damages, in conjunction with the overall
$250,000 cap was unconscionable. Id. The court easily concluded that it was not:
The contractual provision in the service contract here caps

recovery for damage to a residence as a result of pesticide
treatment for termites at $250,000, excluding liability for “indirect
expenses or consequential damages relating to the existence of
termites or termite damage.” In light of the foregoing standard,
especially the definition of an unconscionable provision as one that
no man in his sense and not under delusion would make and that
no honest and fair man would accept, we simply cannot conclude
that the limitation on recoverable damages in the service contract is
unconscionable.
Id.
The language in the agreement in Sears and the limitation of liability provision here are
virtually identical. Compare id. at 154 (“In no event shall either party be liable to the other for
25
indirect, special, or consequential damages or loss of anticipated profits.”) with Ex. B, p. DX003-
6 (“Terminix disclaims and shall not be responsible for any liability for direct, indirect, special,
incidental, consequential…and/or loss of enjoyment damages.”). Moreover, the agreement at-
issue in Sears was an agreement for termite control services, just as here.
On the basis of Sears and the limitation of liability provision in the Agreement, the
Plaintiffs are not entitled to incidental or consequential damages. The Arbitrator awarded those
amounts, however, as follows:
 “Incidental” Termite Services Paid: $1,398
 Investigation of damage: $600
 Utilities (combined): $2,880
 Yard maintenance: $300
 Campground lot rental: $3,434
 Additional Campground lot, if necessary:$6,000
 House repairs (non-TMX approved): $300
 Automobile gas: $3,633
 Automobile wear & tear: $6,000
 Trash service: $375
 Storage unit: $2,580
 Re-landscaping: $400
 Total: $27,900
Similarly, while Terminix has been unable to locate any Alabama authority determining
whether a limitation of “loss of enjoyment” damages is enforceable, the burden is on the
Plaintiffs to prove the limitation of liability provision is unenforceable. See Fox Alarm Co., Inc.
26
v. Wadsworth, 913 So. 2d 1070, 1077-76 (Ala. 2005).7 Though labeled as an award for “mental
anguish,” the $900,000 awarded to Lynne Fitzgerald and the $300,000 awarded to Ann
McLaurin are based on the loss of enjoyment of their home and yard. The Award states as
much:
Dauphin Island is a barrier island in the Gulf of Mexico and the

house was built on a prime lot close to the water. Claimants chose
this particular house because they are “birders.” Birders are people
intensely interested in many varieties of birds, their semi-annual
migration routes and learning with and from other birders. The
location of the Claimants’ house is in the actual migration path of
many birds and has become a gathering place for the Claimants
and many new friends until they had to vacate it in July of 2017.
The loss of community and social interaction has been significant
for both women.
See Award, Ex. M, pp. 3-4. See also Tr. 1102-1104 (repairs scheduled around birding season).
Terminix expressly disclaimed these loss of enjoyment damages, however, in its limitation of
liability provision. In failing to enforce that provision as written, Ms. Benedict exceeded her
authority.
CONCLUSION
The Arbitrator’s Award is due to be vacated or modified. It exceeds her authority, is
based on bias and evident partiality, and embodies various forms of misbehavior that
substantially prejudiced Terminix’s rights.
/s/ Haley A. Cox

Of Counsel
OF COUNSEL:

7
The Plaintiffs are charged with having read the Agreement. See Locklear Dodge City, Inc. v.
Kimbrell, 703 So. 2d 303, 306 (Ala. 1997) (“[T]his Court has held that a person who signs a
contract is on notice of the terms therein and is bound thereby even if he or she fails to read the
document.”)
27
Michael L. Bell
mbell@lightfootlaw.com
Haley A. Cox
hcox@lightfootlaw.com
LIGHTFOOT, FRANKLIN & WHITE, L.L.C. 400 North 20th Street
Birmingham, Alabama 35203
LFW has 18 lawyers working on Campbell Law’s Terminix cases
(205) 581-0700
(205) 581-0799 (fax)
CERTIFICATE OF SERVICE
I certify that I have electronically filed the foregoing with the Clerk of the Court using the CM/ECF system
on November 12, 2019, which will send electronic notification of the filing to the parties. If CM/ECF indicates
that Notice needs to be delivered by other means to any of the parties, I certify that a copy will be sent via U.S.
Mail, properly addressed, postage prepaid. [Campbell Law PC represents the Claimants -
www.campbelllitigation.com - Tom Campbell and Brandon Falls]
/s/ Haley A. Cox
Of Counsel
28

Terminix Brief To Vacate Award Annot

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Case 1:19-cv-00553-JB-M Document 26 Filed 11/12/19 Page 1 of 28 PageID #: 1148

UNITED STATES DISTRICT COURT

ANN FAKENAM and LYNNE )

TERMINIX’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE,

Support of Motion to Vacate, Modify, or Correct the Arbitrator’s

induced contracts] INTRODUCTION

modified, and corrected.

$515,000—because there is no contractual obligation, statutory provision, or legal precedent

I. The Parties, the Property, and the Termite Protection Plan

SOC ¶¶28, 32.

Plaintiffs would later seek to recover from Terminix:

Except as otherwise prohibited by law, Terminix disclaims and

II. Treatment and Repair History

1274-92, 1296-99; Ex. I, Drilling Photographs.

$72,700, and inviting Plaintiffs to accept or dispute the

1203-07, 1211-16. Plaintiffs did not respond to Mr.

III. Claims Asserted, Relief Sought, and Award Entered

compensatory damages (including mental anguish), incidental, consequential, and punitive

acknowledged the impropriety of conflating the multiple cases against Terminix:

During the trial of this case, Respondent Terminix’s counsel made

Compensatory (demolition and rebuilding house) $275,000

Ms. Benedict has had an extraordinary—and problematic—level of exposure to various

International Co., LP, No. 01-17-0001-8761 (Oct. 9,

for Terminix to ignore.] STANDARD OF REVIEW

award. They are:

(1) where the award was procured by corruption, fraud, or undue

(2) where there was evident partiality or corruption in the

(3) where the arbitrators were guilty of misconduct in refusing to

(4) where the arbitrators exceeded their powers, or so imperfectly

See 9 U.S.C. § 10(a).

standard of impartiality that should be applied to arbitrators:

Section 10 of the Federal Arbitration Act provides that a federal

I. The Arbitrator’s Award is the Product of Partiality and Apparent Bias.

should be stricken and not considered:

During the trial of this case, Respondent Terminix’s counsel made

favor of claimants represented by Plaintiffs’ counsel. See Ex. T, Comparison of McLaurin

the following factual findings in consecutive arbitration awards against Terminix:

“promised”), p. 7; Ex. O, Siegel Award, p. 3 (stating “Based on the evidence and

warning against doing just that. For example,

B. Ms. Benedict’s Continually Increasing Awards Demonstrate Partiality; Her

and WAV Properties, LLC v. Terminix, et al (Ex. Y).

Alliance Ins. Co. v.

Reynolds, 504 So. 2d 1215, 1216 (Ala. Civ. App.

Uselton, 154 So. 3d 964 (Ala. 2014).

We agree with Guardian that the arbitrator exceeded his authority

permitted under applicable law.” This is to say that the arbitrator

award attorney’s fees or expenses. [TMX ignores that there was

[T]he “made whole” doctrine is not a cause of action under

case where the legal

v. TMX Claimants’ Closing Argument and

So. 2d 87, 89 (Ala. 1985) (emphasis added).

plaintiff could not make out a bad faith claim. Id.5

damages award against Terminix:

Respondent Terminix deserves punitive damages for the following

November 2017 Letter or subsequent emails contained an intentional misrepresentation or that

respond in any way to the offer and filed suit instead.

2d 344, 351 (Ala. 2008) (“Breach of an insurance contract is an element of a bad-faith-failure-

Terminix’s rights to a fair arbitration.

Checking Account Overdraft Litig. MDL No. 2036, 685 F. 3d

271-72 (Ala. 2017) (quoting State Farm

wantonness, or malice with regard to the plaintiff.”).

factual distinctions between the two cases:

which it was based are not even actionable under Alabama