MAX O. COGBURN, JR., UNITED STATES MAGISTRATE JUDGE.
THIS MATTER came before the court on January 26, 1999, for a bench trial in Charlotte, North Carolina, and all the parties were ably represented by counsel. Based upon the evidence and testimony there presented, the court enters the following findings of fact, conclusions of law, and decision.
FINDINGS AND CONCLUSIONS
1. Plaintiffs are residents of the State of North Carolina.
2. Although defendant conducts business from a branch office(s) in the greater Charlotte metropolitan area, it is a Delaware corporation having its principal place of business in Atlanta, Georgia.
3. Taking into account the possibility of treble damages under North Carolina's Unfair and Deceptive Trade Practices Act, the amount in controversy exceeded the jurisdictional threshold, complete diversity among the parties existed, removal of this action from state court was proper, and this court has jurisdiction under Title 28 of the United States Code to hear the action.
4. By stipulation of the parties made in open court at the conclusion of the trial, the third through the sixth causes of action have been dismissed, leaving for resolution by the court the first and second claims for relief — breach of contract and breach of express warranty, respectively. The parties further stipulated that plaintiffs would not be entitled to double recovery on their claims and that the court should only enter its judgment on one of the two remaining counts.
5. To avoid double recovery, the court will dismiss the claim for breach of express warranty and consider the evidence of the parties on the remaining claim of breach of contract.
6. The defendant stipulated at trial that it was liable under the contract at issue for damage caused to plaintiffs' home in accordance with the terms of the contract and that the only issue for the court was a determination of an appropriate award of damages.
7. The court finds that at all times relevant to this action, plaintiffs satisfied their obligation of making annual payments to defendant.
8. The court concludes that the contract requires defendant to repair any damage to plaintiffs' home caused by termites that infest the home during the period the contract is in force.
9. The court further finds that defendant is obligated to repair any consequential damage that is caused as a result of termite infestation so long as such damage is reasonably foreseeable and is not aggravated by the homeowner,
10. The evidence revealed that plaintiffs' home sustained both termite and water damage in the areas at issue, specifically, at the back of the home. Defendant's expert testified that the damage was likely to be 80 percent attributable to termites and 20 percent attributable to water or moisture damage. Plaintiffs did not contribute to the damage and, in fact, took reasonable steps to prevent further damage by placing water-resistant tarpaulins on the exterior of the damaged surfaces.
11. The court finds that the greater weight of the evidence presented as to causation of such moisture damage provides a direct link between the termites and moisture penetrating those areas which were first damaged by termites. There was no evidence of a leaky roof, damaged gutters, or other patent or latent structural problems that could have contributed to the detrimental buildup of moisture. The court, therefore, finds by a greater weight of the evidence that all the damage discovered was proximately caused by termites, i.e., that but for the termites, plaintiffs' home would not have sustained water and moisture damage.
12. The court has also considered the expert witness testimony in determining the award of monetary damages. It is clear that, under the contract, plaintiffs are entitled to have their home restored to its original condition without diminution for cheaper substitute material or workmanship.
13. As pointed out from the bench during trial, inconsistency unrelated to quality workmanship or materials existed between the estimates as to certain costs that should not go up based on the quality of the end product.
14. Taking into account all the testimony and evidentiary material received and the arguments of respective counsel, the court awards $27,680 in actual damages. This damages award includes damages to the front door (the amount of which was stipulated), damages to the brick veneer of the home, damages to the back of the home, and damages to the duct system.
A judgment reflecting these findings and conclusions will be entered simultaneously herewith.