Gcube Insurance Services, Inc. v. Lindsay Corporation

Filing 46

ORDER signed by Senior Judge William B. Shubb on 6/4/2013 ORDERING that Areva Solar CA's 33 motion to dismiss the third-party complaint be, and the same hereby, is DENIED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo---GCUBE INSURANCE SERVICES,
INC., a California
corporation,

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NO. CIV. 2:12-1163 WBS CKD
ORDER RE: MOTION TO DISMISS

Plaintiff,
v.

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LINDSAY CORPORATION, a
Delaware corporation, and DOES
1 through 10, inclusive,

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Defendant.
/

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LINDSAY CORPORATION,
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Third-party
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Plaintiff,
v.
AREVA SOLAR, INC.; AUSRA CA I,
LLC now known as AREVA SOLAR
CA I, LLC; SPECIAL SERVICES
CONTRACTORS, INC.; LLOYD W.
AUBRY CO., INC.; MATERIAL
INTEGRITY SOLUTIONS, INC.; and
ZOES 1 through 50, inclusive,
Third-party
Defendants.
/
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----oo0oo----

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Plaintiff GCube Insurance Services, Inc. brought this

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action against defendant Lindsay Corporation, Inc. (“Lindsay”)

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arising out of Lindsay’s provision of A-frame supports for a

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Solar Steam Generation array (“SSG array”).

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Lindsay filed a third-party complaint (“TPC”) against Areva

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Solar, Inc.; Ausra CA I, LLC, now known as Areva Solar CA I, LLC

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(“Areva Solar CA”); Special Services Contractors, Inc.; Lloyd W.

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Aubry Co., Inc.; Material Integrity Solutions, Inc.; and Zoes one

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through fifty.

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negligence, equitable indemnity, equitable contribution, and

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declaratory relief.

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(Docket No. 21.)

On March 1, 2013,

Lindsay brings claims of

Third-party defendants Areva Solar, Inc., and Areva

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Solar CA now move to dismiss the TPC for failure to state a claim

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upon which relief can be granted pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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Lindsay voluntarily dismissed Areva Solar, Inc.

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(Docket No. 33.)

On May 13, 2013,
(Docket No. 37.)

To survive a motion to dismiss, a plaintiff must plead

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“only enough facts to state a claim to relief that is plausible

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on its face.”

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(2007).

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than a sheer possibility that a defendant has acted unlawfully,”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “[w]here a

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complaint pleads facts that are ‘merely consistent with’ a

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defendant’s liability, it ‘stops short of the line between

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possibility and plausibility of entitlement to relief.’”

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(quoting Twombly, 550 U.S. at 557).

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plaintiff has stated a claim, the court must accept the

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

This “plausibility standard,” however, “asks for more

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In deciding whether a

Id.

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allegations in the complaint as true and draw all reasonable

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inferences in favor of the plaintiff.

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U.S. 232, 236 (1974), overruled on other grounds by Davis v.

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Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322

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(1972).

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Scheuer v. Rhodes, 416

In plaintiff’s Complaint for subrogation, plaintiff

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alleges that it issued an insurance policy to Ausra, Inc.

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(“Ausra”) on or about March 20, 2009, insuring all construction,

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erection, and operation activities associated with a SSG array

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located at Ausra’s Kimberlina facility in Bakersfield,

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California.

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Lindsay specially manufactured twenty-five steel A-Frame supports

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for the array at a plant in Omaha, Nebraska, and then had the

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supports delivered to the Kimberlina facility.

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On or about May 28, 2010, as the SSG array components were raised

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atop the A-Frame supports, twenty-four of the supports buckled at

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the joint that Lindsay allegedly cut, welded, and manufactured.

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(Id. ¶¶ 15-16.)

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(Compl. ¶ 7 (Docket No. 1).)

Plaintiff alleges that

(Id. ¶¶ 8-10.)

Ausra tendered its claim for all losses and damages

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resulting from the incident to plaintiff.

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alleges that an investigation revealed incomplete fusion of the

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welds performed by Lindsay at the joints of the A-Frame supports.

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(Id. ¶¶ 19-20.)

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resulting from the incident and now pursues subrogation rights

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against Lindsay, (id. ¶ 24), asserting claims for strict products

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liability and negligence.

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(Id. ¶ 18.)

Plaintiff

Plaintiff paid for all losses and damages

Areva Solar CA contends that Lindsay has failed to
allege sufficient “facts to support a possible scenario under
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which the subrogor Areva [Solar CA] may be liable for Lindsay’s

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alleged liability to the subrogee [plaintiff]” and facts to

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support its allegation that plaintiff is not the subrogee of

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Areva Solar CA.

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Although Areva Solar CA does not explicitly argue as much, it

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must be its contention that Areva Solar CA is the same entity as

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Ausra or that some other basis exists for finding a subrogation

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relationship between it and plaintiff.

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Lindsay’s contention that Areva Solar CA is a different entity

(Mem. in Supp. at 2:10-12 (Docket No. 33).)

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from Ausra.1

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separate entity from Ausra.

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In contrast, it is

Ausra.

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Lindsay’s TPC treats Areva Solar CA as a wholly
It makes no allegations against

Areva Solar CA’s arguments are not well-taken for the

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basic reason that there is nothing properly before the court--

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either allegations or evidence--to suggest that Areva Solar CA is

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the subrogor of plaintiff and plaintiff is its subrogee.

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Likewise, there is nothing to suggest that Areva Solar CA is the

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same entity as Ausra.

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allegations shows, plaintiff alleges only that it issued a policy

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of insurance to Ausra.

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it issued a policy to Areva Solar CA or transferred the Ausra

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policy Ausra to Areva Solar CA.

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and Areva Solar CA are actually the same entity.

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As the above summary of plaintiff’s

(See id. ¶ 7.)

It does not allege that

Nor does it allege that Ausra

Nor has Areva Solar CA presented any evidence outside
of the Complaint that the court may properly consider on a motion

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Lindsay alleges that Areva Solar CA was formerly known
as Ausra CA I, LLC. (Third-Party Compl. ¶ 7.) There is no
evidence or allegation, however, indicating that Ausra CA I, LLC
is the same entity as Ausra, Inc.
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to dismiss to show a subrogation relationship or to show that it

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is the same entity as Ausra.

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F.3d 903, 908 (9th Cir. 2003) (noting that on a motion to

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dismiss, the court usually may not consider evidence outside the

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pleadings without converting the motion into one for summary

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judgment).

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See United States v. Ritchie, 342

In the absence of any allegations or evidence of a

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subrogation relationship between Areva Solar CA and plaintiff,

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Lindsay has alleged sufficient facts to support a “possible

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scenario under which” Areva Solar CA could be liable to Lindsay

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for its alleged liability to plaintiff.

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6.)

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show “(1) a legal duty to use reasonable care, (2) breach of that

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duty, and (3) proximate cause between the breach and (4) the

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plaintiff’s injury.”

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App. 4th 1333, 1339 (2d Dist. 1998).

(Mem. in Supp. at 5:2-

To prove a cause of action for negligence, plaintiff must

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Mendoza v. City of Los Angeles, 66 Cal.

In the TPC, Lindsay alleges that Areva Solar CA not

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only owned and operated the SSG array, but also that it

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negligently “supervised the construction, installation and

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erection” of the SSG array and its component parts, including the

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A-Frame supports.

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No. 21).)

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have known that the inadequately designed components of the SSG

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array would place stress loads on the A-Frame supports during the

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erection process that resulted in damage to the SSG array, the A-

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Frame support towers, and related components.

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Likewise, it alleges that Areva Solar CA knew or should have

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known that the A-Frame supports were constructed and installed

(Third-Party Compl. (“TPC”) ¶¶ 17, 23 (Docket

It further alleges that Areva Solar CA knew or should

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(Id. ¶ 21.)

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without adequate guying or cabling, resulting in the damage

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claimed by plaintiff.

(Id. ¶ 22.)

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Lindsay then alleges that Areva Solar CA owed it a duty

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to “use ordinary and reasonable care to design, inspect, analyze,

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construct, erect, manage, supervise, operate and/or control” the

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SSG array and its component parts, including the A-Frame

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supports, without causing damage to those parts.

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35.)

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id. ¶¶ 25-30, 36.)

(Id. ¶¶ 24,

It further alleges breach, causation, and damages.

(See

Thus, Lindsay has set forth a claim for

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negligence against Areva Solar CA.2

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means of holding Areva Solar CA liable for Lindsay’s alleged

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liability to plaintiff.

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This claim is a plausible

Assuming that Lindsay would need to allege facts to

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show the absence of a subrogation relationship had plaintiff

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alleged such a relationship, no such relationship is alleged in

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the Complaint.

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any allegations against Areva Solar CA.

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actually never mentioned.

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evidence before the court indicating that Areva Solar CA is the

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same entity as Ausra, such that the subrogation relationship

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between plaintiff and Ausra alleged in the Complaint would show

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Areva Solar CA to be in a subrogation relationship with plaintiff

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as well.

As explained above, the Complaint is bereft of
That corporation is

Further, there are no allegations or

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Lindsay alleges in the TPC that Areva Solar CA did not

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receive any payments from plaintiff for any claimed and disputed

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Areva Solar CA did not specifically challenge the
sufficiency of Lindsay’s allegations for its claims for
indemnity, comparative contribution, and declaratory relief.
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damages incurred by plaintiff, that plaintiff is not the subrogee

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of Areva Solar CA, and that Areva Solar CA is not the subrogor of

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plaintiff.

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contention that the court need not accept as true a complaint’s

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legal conclusions.

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court does not consider Lindsay’s allegations that plaintiff and

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Areva Solar CA do not have a subrogation relationship, as already

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explained, Lindsay has properly alleged a claim against Areva

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Solar CA.

(Id. ¶¶ 31-32).

Areva Solar CA is correct in its

See Iqbal, 556 U.S. at 678.

But even if the

There is no requirement that a third-party plaintiff

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first establish the absence of a subrogation relationship between

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the third-party defendants and the plaintiff to bring its third-

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party claims.

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Because plaintiff neither alleged that Ausra and Areva

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Solar CA are one in the same or that it has a subrogation

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relationship with Areva Solar CA, nor provided the court with any

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evidence that it may properly consider on a motion to dismiss of

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either, Lindsay need not aver additional allegations to plead

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around the abstract possibility that plaintiff is also the

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subrogee of Areva Solar CA.

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to dismiss Lindsay’s claims against it must be denied.

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Accordingly, Areva Solar CA’s motion

IT IS THEREFORE ORDERED that Areva Solar CA’s motion to

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dismiss the third-party complaint be, and the same hereby, is

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DENIED.

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DATED:

June 4, 2013

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