Kuhlman v. Louisville Ladder, Inc.

Filing 16

ORDER: Defendant Louisville Ladder, Inc.'s Motion to Dismiss Counts III, IV and V of Plaintiffs' Complaint 4 is GRANTED without prejudice and with leave to amend. Plaintiffs may file an amended complaint on or before December 14, 2012. Signed by Judge Virginia M. Hernandez Covington on 11/30/2012. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RANDALL KUHLMAN and
ANN KUHLMAN,
Plaintiffs,
v.

Case No.: 8:12-cv-1238-T-33AEP

LOUISVILLE LADDER, INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Louisville Ladder, Inc.’s Motion to Dismiss Counts III, IV and
V of Plaintiffs’ Complaint (Doc. # 4), filed on June 1, 2012.
Plaintiffs filed a response in opposition to the Motion on
June 15, 2012. (Doc. # 8).

For the reasons that follow, the

Court grants the Motion without prejudice and with leave to
amend.
I.

Background
According to the Complaint, on or about September 1,

2010, Defendant Louisville Ladder, Inc. distributed, sold, or
otherwise marketed a ten-foot long step ladder to Plaintiff
Randall Kuhlman’s employer, Managed Insulation Services, for
use as “an instrument in the installation of insulation
materials in structures.”

(Doc. # 2 at ¶¶ 4-5).

On or about

September 1, 2010, while Kuhlman was employed by Managed

Insulation Services, “he climbed the ladder and its spreader
broke away from the frame of the ladder when the rivets of the
brace failed.

He fell from the step ladder to the ground and

suffered permanent injuries.” Id. at ¶ 6.
Kuhlman and his wife, Ann, initiated this action in state
court on April 18, 2012, alleging negligence (Count I), strict
liability

in

tort

(Count

II),

implied

warranty

of

merchantability (Count III), implied warranty of fitness for
a particular purpose (Count IV), breach of express warranty
(Count V), and consortium (Count VI). (Doc. # 2).

Louisville

Ladder removed the case to this Court on June 1, 2012, on the
basis of the Court’s diversity jurisdiction. (Doc. # 1).
Louisville Ladder’s Motion to Dismiss Counts III, IV, and V of
the Complaint is now before the Court.
II.

Legal Standard
A complaint must contain a short and plain statement of

the claim showing that the pleader is entitled to relief.
Fed.R.Civ.P. 8(a)(2).

In reviewing a motion to dismiss, a

trial court accepts as true all factual allegations in the
complaint and construes the facts in the light most favorable
to the plaintiff.

Jackson v. Bellsouth Telecomms., 372 F.3d

1250, 1262 (11th Cir. 2004).

However, courts are not “bound

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to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
In Bell Atlantic Corp. v. Twombly, the Supreme Court
articulated the standard by which claims should be evaluated
on a motion to dismiss:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
550 U.S. 544, 555 (2007) (internal citations omitted).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting

Twombly, 550 U.S. at 570).

A plausible claim for relief must

include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Id.

III. Analysis
Louisville Ladder moves to dismiss Count III (breach of
implied warranty of merchantability), Count IV (breach of
implied warranty of fitness for a particular purpose), and
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Count V (breach of an express warranty).

Louisville Ladder

argues that under Florida law, breach of warranty claims
require privity between the plaintiff and the defendant, which
Louisville Ladder claims has not been alleged and does not
exist in this case.

(Doc. # 4 at 7).

Louisville Ladder is correct that under Florida law, “to
recover for the breach of a warranty, either express or
implied, the plaintiff must be in privity of contract with the
defendant.”

Weiss v. Johansen, 898 So. 2d 1009, 1012 (Fla.

4th DCA 2005)(citing Intergraph Corp. v. Stearman, 555 So. 2d
1282 (Fla. 2d DCA 1990)).

It is uncontested that Kuhlman did

not purchase the ladder directly from Louisville Ladder, and
thus, would not himself be in privity with Louisville Ladder.
However, in Florida, warranties such as those alleged in
this case may be governed by the Uniform Commercial Code, as
codified by Sections 672.313-18, Florida Statutes. See Thursby
v.

Reynolds

Metals

Co.,

466

So.

2d

245,

249

(“Express

warranties in Florida are governed by Section 672.313, Florida
Statutes . . . .”); Cardozo v. True, 342 So. 2d 1053, 1057
(Fla. 2d DCA 1977)(“The U.C.C. in codifying the law of sales
did nothing to restrict the common law doctrine of implied
warranty under Florida law.

To the contrary, the code raised

the dignity of the doctrine to statute and made it a certainty
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that warranties would be implied in accordance with the
statutory design where the seller is a merchant with respect
to goods of that particular kind being sold.”).

Notably, the

U.C.C. provides an exception to the privity requirement for
certain

qualifying

individuals.

Section

672.318,

Florida

Statutes, states:
A seller’s warranty whether express or implied
extends to any natural person who is in the family
or household of his or her buyer, who is a guest in
his or her home or who is an employee, servant or
agent of his or her buyer if it is reasonable to
expect that such person may use, consume or be
affected by the goods and who is injured in person
by breach of the warranty.
A seller may not
exclude nor limit the operation of this section.
Although the Complaint does not specifically allege that
the U.C.C. governs Counts III through V, it may very well be
that the U.C.C., and Section 672.318 in particular, does in
fact apply to this case.

First, the term “seller” under the

U.C.C. is defined as “a person who sells or contracts to sell
goods” while a “buyer” is “a person who buys or contracts to
buy goods.” Section 672.103(1)(a),(d), Fla. Stat. Although
Louisville Ladder is not specifically alleged to be a “seller”
and Kuhlman’s employer is not expressly alleged to be a
“buyer”

as

those

terms

are

defined

by

the

U.C.C.,

the

Complaint does allege that Louisville Ladder does business in
Florida, “including distributing and selling, and otherwise
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marketing in the stream of commerce a ten foot long step
ladder” and that Louisville Ladder knowingly “distributed
and/or sold” the subject ladder to Kuhlman’s employer.
# 2 at ¶¶ 4, 5).

(Doc.

Furthermore, ladders would constitute

“goods” under the U.C.C., which are defined as “all things
(including specially manufactured goods) which are movable at
the time of identification to the contract for sale other than
the money in which the price is to be paid, investment
securities and things in action.” Section 672.105(1), Fla.
Stat.

The Complaint additionally alleges that Kuhlman was

injured due to Louisville Ladder’s breach of the purported
warranties. (Doc. # 2).
The Complaint, however, does not allege that “it [was]
reasonable to expect that [Kuhlman] may use, consume or be
affected by the goods” as is required to invoke the privity
exception provided by Section 672.318.

Additionally, under

the U.C.C., an implied warranty of merchantability attaches
only “if the seller is a merchant with respect to goods of
that kind” as the term “merchant” is defined by the statute.1

1

Section 672.104(1) provides that “‘Merchant’ means a
person who deals in goods of the kind or otherwise by
occupation holds himself or herself out as having knowledge or
skill peculiar to the practices or goods involved in the
transaction or to whom such knowledge or skill may be
attributed by his or her employment of an agent or broker or
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Sections 627.104, 672.314(1), Fla. Stat.

The Complaint does

not sufficiently allege that Louisville Ladder qualifies as a
“merchant” to state a claim for breach of an implied warranty
of merchantability under the U.C.C.

Accordingly, Louisville

Ladder’s Motion to Dismiss is due to be granted on these
bases.

However, Kuhlman is granted leave to file an amended

complaint to allege facts sufficient to state his claims under
the U.C.C. and to invoke the U.C.C.’s privity exception, if
possible.
Louisville Ladder additionally argues that Counts III,
IV, and V should be dismissed because Kuhlman also seeks
recovery under a strict liability theory (Count II).

(Doc. #

4 at 7). Louisville Ladder contends that “the cause of action
for breach of warranty was expressly abolished by the Florida
Supreme Court in 1988 in cases where the remedy of strict
liability is available.” Id. (citing Kramer v. Piper Aircraft
Corp., 520 So. 2d 37 (Fla. 1988); Indem. Ins. Co. v. Am.
Aviation,

Inc.,

861

So.

2d

532

(Fla.

2004)).

However,

Louisville Ladder’s characterization greatly overstates the
holding of Kramer.

Indeed, in Kramer, the Florida Supreme

Court explained that its adoption of the doctrine of strict

other intermediary who by occupation holds himself out as
having such knowledge or skill.”
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liability in tort supplanted only the cause of action for
implied breach of warranty where there is no privity of
contract, but expressly stated that “[t]he implied warranty
cause of action remains unaltered where privity of contract
exists and in those cases which fall within the scope of §
672.318, Fla. Stat. (1985), of the Florida Uniform Commercial
Code.”

Kramer, 520 So. 2d at 39 n.4.

Based on the fact that

this case may fall within the scope of Section 672.318, Fla.
Stat., as explained above, the Court finds that Kuhlman’s
breach of warranty claims in Counts III through V are not
necessarily supplanted and rendered superfluous by Kuhlman’s
strict liability claim in Count II.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Defendant Louisville Ladder, Inc.’s Motion to Dismiss
Counts III, IV and V of Plaintiffs’ Complaint (Doc. # 4) is
GRANTED without prejudice and with leave to amend. Plaintiffs
may file an amended complaint consistent with the foregoing on
or before December 14, 2012.
DONE and ORDERED in Chambers in Tampa, Florida, this 30th
day of November, 2012.

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Copies:

All Counsel of Record

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