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Guaranty Pest Control12/30/2002
sented to the Bushes, in its contract and bond forms, that it had treated the Bushes' house and that it had done so "thoroughly." The Bushes also presented evidence indicating that an examination of the property in 1999 indicated that Guaranty had not drilled, or drilled sufficiently, into several foundation areas beneath the Bushes' house. However, the termite bond also recognized that termite infestation might occur in the future despite "thorough" treatment, and provided for reinspection and retreatment of the residence in that event. Guaranty adduced evidence that its file regarding the Bushes' house indicated that it had treated the Bushes' house with the appropriate amount of termiticide in 1979 for that type of house, and its manager testified that before 1998 the Bushes had made no complaints of termite damage.
Under the portions of § 6-11-20 incorporated into the trial court's jury instructions, the Bushes were under a duty to adduce evidence supporting each element of their reckless misrepresentation claim, evidence "that, when weighed against evidence in opposition," would produce "a firm conviction" that Guaranty "consciously or deliberately engaged" in an intentional misrepresentation of a material fact "with the intention ... of thereby depriving a person or entity of property or legal rights or otherwise causing injury " so as to give rise to a "high probability as to the correctness of the conclusion." After a review of the evidence adduced by the parties, we cannot conclude that the Bushes met the heightened burden imposed by the Legislature for the imposition of punitive damages. Although we have already concluded that there is substantial evidence of a material misrepresentation upon which the Bushes reasonably relied and of damage that could ultimately have resulted from that reliance, so as to support a finding of liability, there was not clear and convincing evidence that Guaranty, in making misrepresentations that it had "thoroughly" treated and inspected the Bushes' property, had any intent to deprive the Bushes of their property or legal rights or to otherwise cause them injury. See Thompson v. United Cos. Lending Corp., 699 So. 2d 169, 176 (Ala. Civ. App. 1997) (reversing a directed verdict as to a fraud claim stemming from a lender's representations of "full" insurance coverage but affirming as to the punitive-damages issue, and noting the different standards of proof).
We therefore conclude that the Bushes' evidence was insufficient under § 6-11-20 to warrant an award of punitive damages. That portion of the trial court's judgment entered on the jury's verdict awarding punitive damages to the Bushes is reversed, and the cause is remanded to the trial court for that court to vacate the punitive-damages award. In all other respects, the trial court's judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
Thompson and Pittman, JJ., concur.
Yates, P.J., concurs in the result.
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