Last case of '06 in Madison County is new class action

Steve Gonzalez Jan. 5, 2007, 12:35am



An Edwardsville man filed a class action suit against Terminix and The ServiceMaster Company in Madison County Circuit Court Dec. 29, claiming the defendants failed to provide termite services as required by statute.

The suit was the last (1,145th) suit filed in Madison County in 2006.

Plaintiff Milton Gerstenecker claims the defendants violated the Illinois Consumer Fraud and Deceptive Practices Act by concealing that they failed to provide proper termite services.

He is represented by Elizabeth Heller and W. Stan Faulkner of the Goldenberg firm in Edwardsville, Christian Hartley of Charleston S.C. and Tom Campbell of Birmingham, Ala.

Gerstenecker claims that Terminix was uniformly obligated to provide services to protect homes from termite infestation through assuring the effective application and maintenance of chemical barriers in the soil under and around the foundation of his property.

"Terminix uniformly and continuously failed to conduct adequate inspections and reinspections for termite infestation or related damage and other wood destroying organisms," the complaint states.

Gerstenecker also claims Terminix failed to properly treat or repair his property after termite damage was discovered and claims the company created a scheme and system which has promoted and led to widespread negligence and recklessness and wantonness.

According to the suit, Terminix is the leading pest control company in the country and has more than 250 office locations with more than 8600 employees generating sales in excess of $990 million.

The suit claims ServiceMaster is an Illinois company based in Downers Grove and represents itself as a Fortune 500 company that is $3.5 billion strong.

Gerstenecker claims Madison County is the proper jurisdiction for his class action because the defendants are doing business in Illinois by contracting with Illinois residents and committing torts in Illinois, including Madison County.

"In any event, this class action is one in which two-thirds or more of the proposed class and a primary defendant are citizens of Illinois requiring federal courts to decline jurisdiction," the complaint states.

According to the complaint, Terminix is for all legal and practicable purposes a mere department of ServiceMaster.

"ServiceMaster controlled and directed the conduct and omissions of Terminix," the complaint states.

Gerstenecker claims Terminix routinely performed improper and inadequate treatments and inspections of his home.

He claims Terminix contracts provide a guarantee of inspections and reinspections, treatment or retreatment, and repair of any termite-related damage provided that the customers pay the annual renewal fee.

Gerstenecker claims he was placed under contract after Terminix stopped using Chlordane-based products in the 1980's and claims they continued to renew assurances of termite protection and collected money for termite protection without reapplying termite chemicals after they knew the chemicals had become ineffective.

"Terminix either never discovered or never disclosed the full extent of termite infestation, or damage, and never adequately inspected or treated the property," the complaint states.

He claims Terminix suppressed the fact his entire house did not receive the termite treatment that was contracted for at the beginning of their relationship.

"Terminix has refused to make proper remedial treatments and/or repairs to the home everyday since the original treatment causing a new breach or tort each day thereafter," the complaint states.

Gerstenecker claims he does not know the exact number of people eligible to be in the class but believes thousands of people would be eligible to join.

He claims his interests are similar to the class members and claims he envisions no unusual difficulty in the management of the class.

Gerstenecker also claims he will not accept or demand on behalf of any class member recovery in excess of $75,000.

"Plaintiff and class members seek relief under Illinois law and not federal law," the complaint states.

Gerstenecker is seeking:

  • Compensatory, incidental, consequential and punitive damages according to proof at trial;

  • Equitable relief in accordance with proof at trial;

  • Taxing against all fees and costs of any expert, and all discovery and deposition costs and expenses; and

  • Reasonable attorneys fees and expenses.

    The case has yet to be assigned.

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