Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.
Few dispositive motions arise more frequently in Alabama termite litigation than motions for summary judgment on statute-of-limitations grounds. The limitations question seems deceptively simple — the damage was discovered at a certain date; suit was filed two years later; is the claim timely? — but the analysis is considerably more nuanced in the context of latent structural damage caused by concealed pest infestations. Understanding the interplay between the general two-year limitations period, the discovery rule, and the fraud savings clause is essential for plaintiff's practitioners at the pleading stage and for defense counsel assessing its dispositive potential.
The General Two-Year Limitations Period
Ala. Code § 6-2-38(l) (1975) provides that "[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years." This is the catchall tort limitations period and governs negligence and wantonness claims against pest control companies. Breach of contract claims are subject to the six-year period under Ala. Code § 6-2-34(9), unless a specialized statute applies; claims arising under the builders' Article 13A are governed by a distinct two-year period discussed in Post 149.
The general default rule is that the limitations period begins to run when the injury occurs — not when the plaintiff discovers it. This default produces harsh results in termite cases where structural damage develops silently behind walls and under floors over years, and the homeowner has no practical means to discover it without invasive inspection. Alabama law mitigates this harshness through two mechanisms: the discovery rule codified in § 6-2-3 for fraud claims, and a judicial extension of discovery principles to latent-damage tort claims generally.
Ala. Code § 6-2-3: The Fraud Discovery Savings Clause
Ala. Code § 6-2-3 (1975) provides: "In actions seeking relief on the ground of fraud where the statute has created a bar, the claim must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have two years within which to prosecute his action."
Section 6-2-3 is critically important in Alabama termite cases because fraud claims are common — fraudulent suppression of known termite damage, fraudulent misrepresentation of inspection results, and promissory fraud are all theories regularly pleaded. The savings clause tolls the limitations period until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the fraud.
The "reasonable diligence" standard. Alabama's current framework was established by the Alabama Supreme Court in Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala. 1997). Foremost reinstated the objective "reasonable reliance" standard, departing from an earlier Hicks v. Globe Life and Accident Insurance Co. formulation that had required actual knowledge. Under Foremost and subsequent decisions, the limitations period under § 6-2-3 begins to run not when the plaintiff has actual knowledge of fraud, but when the plaintiff "was privy to facts which would 'provoke inquiry in the mind of a [person] of reasonable prudence, and which, if followed up, would have led to the discovery of the fraud.'" Auto-Owners Ins. Co. v. Abston, 822 So. 2d 1187, 1195 (Ala. 2001) (quoting Willcutt v. Union Oil Co., 432 So. 2d 1217, 1219 (Ala. 1983)); see also Dickinson v. Land Developers Constr. Co., 882 So. 2d 291, 298 (Ala. 2003) (applying same standard to Article 13A claims by analogy).
Pleading requirements under § 6-2-3. Alabama courts require that a complaint invoking the savings clause "allege the time and circumstances of the discovery of the cause of action" and "the facts or circumstances by which the defendants concealed the cause of action or injury and what prevented the plaintiff from discovering the facts surrounding the injury." DGB, LLC v. Hinds, 55 So. 3d 218, 225–26 n.3 (Ala. 2010); Angell v. Shannon, 455 So. 2d 823, 823–24 (Ala. 1984). A bare conclusory invocation of the savings clause is insufficient; the complaint must plead discovery circumstances with specificity. This pleading requirement is a trap for counsel who file generic fraud complaints without addressing the limitations issue head-on.
Burden allocation. When the complaint is facially barred by the limitations period, the plaintiff bears the initial burden of showing the savings clause applies. Amason v. First State Bank of Lineville, 369 So. 2d 547, 551 (Ala. 1979). Once sufficient facts are pleaded to trigger § 6-2-3, dismissal based on limitations is "proper only if, from the face of the complaint, it is apparent that the tolling provisions do not apply." Travis v. Ziter, 681 So. 2d 1348, 1351 (Ala. 1981).
Applying the Discovery Rule to Latent Termite Damage
In the typical termite case, the plaintiff's complaint alleges both contract-based claims (breach of the termite bond) and tort claims (negligence, fraud). The § 6-2-3 savings clause applies to the fraud claims. For the negligence claims, the plaintiff relies on judicial extension of discovery principles to latent-damage torts.
Alabama courts have recognized that where structural damage "is latent or by its nature is not discoverable in the exercise of reasonable diligence at the time of its occurrence," the claim accrues when the damage "is or in the exercise of reasonable diligence should have been first discovered." This language, borrowed from Ala. Code § 6-5-220(e) (the Article 13A latent-damage provision), has been applied broadly in Dickinson to construction defect claims involving hidden termite damage in combination with builder negligence. The same logic applies to pure pest control negligence claims where the damage is structurally concealed.
The "provoking inquiry" standard in practice. In Dickinson, the court reversed summary judgment for the builder on latent-damage claims, holding that the plaintiff homeowners' awareness of surface-level problems (leaking doors, window seal failures, cracking driveways) did not, as a matter of law, put them on notice of the concealed rotting belowground wooden wall and termite infestation that caused the real structural damage. 882 So. 2d at 300. The court reasoned that a homeowner who reasonably relied on the builder to address identified problems was not required to independently investigate subsurface conditions — at least until the builder's repeated failures would put a reasonable person on notice that something more fundamental was wrong. Id.
For termite practitioners, Dickinson stands for the proposition that surface-level symptoms (spongy floors, sticking doors, small buckling of baseboard trim) do not necessarily start the limitations clock on a concealed-colony claim, particularly where the homeowner is relying on the pest control company's annual inspections — inspections that, if competent, should have detected the problem. If the company's own reports say "looks good," the homeowner's failure to personally investigate is objectively reasonable.
The annual inspection and the "concealment" theory. Where the pest control company performs annual inspections and reports "no activity" or "no evidence of infestation" on properties with active concealed damage, the company's reports themselves operate as a form of fraudulent concealment that tolls the limitations period. The logic is straightforward: the homeowner reasonably relies on the company's professional representations, and the company's repeated clean bills of health prevent the homeowner from discovering facts that would put a reasonable person on notice of fraud. Courts should, and often do, find that limitations does not begin to run until a third-party inspection, a contractor's discovery during renovation, or some other event provides information inconsistent with the company's annual representations.
When the Clock Starts: Key Fact Patterns
Several fact patterns recur in Alabama termite litigation, with distinct limitations implications:
Discovery during sale inspection. A buyer-commissioned termite inspection at the time of purchase reveals evidence of prior treatment or historical damage that the seller did not disclose. The limitations period begins running on the buyer's fraud claim when the buyer receives the inspection report — not when physical damage is later quantified. Plaintiff's counsel must account for this accrual date and file promptly.
Discovery during renovation. Termite damage is discovered when a contractor opens walls during renovation. This is the clearest latent-damage scenario: the damage was physically concealed, there was no practical means of discovery absent invasive inspection, and § 6-2-3's savings clause applies to fraud claims against the company that performed inspections without disclosing the problem. The limitations period runs from the date of discovery during renovation.
Discovery by structural engineer. The homeowner hires a structural engineer after noticing accelerating structural symptoms. The engineer's report identifies termite damage as the cause. This is the Dickinson scenario: the engineer's report is likely the date of "discovery" for both the latent-damage tort claims and the § 6-2-3 savings clause. File within two years of the report's delivery.
Discovery after the pest control company's own report. The company performs its annual inspection, discovers termite activity, and issues a report disclosing the infestation for the first time. The limitations period arguably begins running on the date of this report, not on any earlier date when symptoms may have been visible — because the company's prior clean reports reasonably induced the homeowner not to investigate further.
Practice Notes
Allege the savings clause in the complaint with specificity. State the date of discovery, the circumstances that prevented earlier discovery, and the facts constituting the fraudulent concealment. Bare conclusory invocations will not survive a motion to dismiss.
Plead contract and tort theories separately. The six-year limitations period for breach of contract provides a separate track with a longer tail. A homeowner who discovers termite damage five years after the bond was issued may be time-barred on negligence claims but not on breach of contract, depending on the bond's terms and when the breach occurred.
Consider the continuous-tort doctrine carefully. Alabama courts have held that a "continuous wrong" theory cannot be used to extend the limitations period indefinitely. See Ala. Code § 6-5-220(e) ("cannot be extended as a continuous wrong"). Each annual inspection failure may constitute an independent breach, but the limitations period on the earliest breaches will have run. Counsel must identify the discrete acts within the limitations period that form the basis of recovery.
Closing
The discovery rule is the plaintiff's most important temporal tool in Alabama termite litigation. But it is a scalpel, not a shield: it requires precise pleading, careful fact-gathering about when symptoms became apparent and why earlier investigation was not reasonably required, and rigorous attention to the distinction between visible problems and latent structural damage. Get the complaint right from the start.
Talk to Yates Anderson
If you are litigating a matter in this area — or weighing whether to — the working analysis above only goes so far. Request a case evaluation and a Yates Anderson attorney will respond within one business day.
Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.