Newberry v. Service Experts Heating & Air Conditioning LLC et al
Filing
21
MEMORANDUM OPINION & ORDER: (1) 10 MOTION to Dismiss by Lennox Industries, Inc. is GRANTED. (2) 11 MOTION to Dismiss by Service Experts Heating & Air Conditioning LLC is GRANTED. (3) 12 MOTION to Dismiss by Service Experts, LLC is GRAN TED. It is further ordered that (4) 20 MOTION for Extension of Time for Service is GRANTED and Pla shall have 30 days from the date of this Order in which to properly serve Dft Freije Treatment Systems, Inc.. Signed by Judge Joseph M. Hood on 4/5/2018.(SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
PETER CANAVAN NEWBERRY,
)
)
Plaintiff,
)
)
v.
)
)
SERVICE EXPERTS HEATING & AIR )
CONDITIONING, LLC d/b/a
)
KNOCHELMANN PLUMBING, HEATING )
& AIR CONDITIONING d/b/a
)
KNOCKELMANN SERVICE EXPERTS,
)
et al.,
)
)
Defendants.
)
Civil Case No.
17-cv-131-JMH
MEMORANDUM OPINION & ORDER
***
This
matter
is
before
the
Court
upon
three
motions
to
dismiss filed by Lennox Industries, Inc. (“Lennox”) [DE 10],
Service Experts Heating & Air Conditioning, LLC (“SEHAC”) [DE
11], and Service Experts, LLC [DE 12]. Plaintiff has responded
to each of these Motions [DE 13, 14, 15], and each defendant has
filed a Reply in further support of their Motions [DE 17, 18,
19.]
The Court concludes that there is merit to each motion and
will dismiss all claims against these three defendants for the
reasons stated below.
I.
This action involves a long-standing dispute between the
parties.
For the purposes of evaluating the Motion to Dismiss,
the Court accepts the following facts averred in the Complaint
as true.
On
December
7,
2011,
SEHAC
made
a
service
call
to
Plaintiff’s home to repair an Aqua-Pure backwash filter system,
but
Plaintiff
was
informed
that
SEHAC
would
not
be
able
to
repair the unit because it did not service Aqua-Pure equipment.
(¶ 11). On December 12, 2011, SEHAC returned to Plaintiff's home
and sold Plaintiff two new water system units. The first was a
TS+ 2000 Easy Water Toxin Shield Backwash Water Filter (“Toxin
Shield
System”)
manufactured
by
Defendant
Freije
Treatment
Systems, Inc. (“Freije”), for the entire home, and the second
was
a
Revita
water
system
for
the
kitchen.
(¶
12).
SEHAC
installed the whole house Easy Water Toxin Shield System and
Revita water system the same day and Plaintiff paid Defendant
SEHAC in full for both systems on the same day. (¶¶ 14, 15).
On December 19, 2011, Plaintiff informed SEHAC of problems
with both new water systems. (¶ 16). On December 20, 2011, an
agent of SEHAC came to Plaintiff’s home to inspect the systems,
repair the water systems, and take a water sample to assure
Plaintiff that the water was safe to drink and use. (¶ 17). The
employee and/or agent of SEHAC then announced that the Easy
Water
Toxin
advised
Shield
Plaintiff
water
that
system
they
were
was
working
taking
a
perfectly,
water
sample
and
for
testing. (¶ 17). On December 30, 2011, another employee and/or
2
agent
of
Defendant
Plaintiff’s
home
SEHAC
and
made
advised
a
second
Plaintiff,
service
“Your
call
water
to
tested
fine,” and then, and on other unspecified occasions, assured
Plaintiff that the water was safe for consumption. (¶¶ 18, 19).
After
other
interactions,
Plaintiff
asked
for
the
Easy
Water Toxin Shield system to be removed and asked that the AquaPure
system
be
re-installed.
(¶¶
20-24).
SEHAC
informed
Plaintiff that it would submit claims for the systems, but never
returned to service the system, remove the system, or return or
re-install
Plaintiff’s
Aqua-Pure
system
despite
repeated
assurances that they would return the Aqua-Pure filter system or
compensate Plaintiff for his loss. (¶¶ 25-26). Plaintiff avers
that
SEHAC
repeatedly
assured
him
that
the
issue
would
be
resolved but then denied any knowledge of Plaintiff’s claim for
taking and failing to return the Aqua-Pure filter system prior
to January 23, 2013. (¶ 34). Plaintiff's Aqua-Pure filter system
has not been returned and Plaintiff has not received monetary
compensation for it. (¶ 36).
In
2013,
Plaintiff
and
his
spouse
filed
substantially
similar civil actions against Defendants SEHAC, Service Experts
LLC,
and
Defendants
Lennox
Industries,
removed
the
cases
Inc.,
to
in
the
Kentucky
United
state
States
court.
District
Court, Eastern District of Kentucky, at Covington. (¶¶ 37-38;
Newberry v. Service Experts Heating and Air Conditioning, et
3
al., Case No. 2:13-cv-00080-DLB-CJS [“Newberry Prior Action”];
Rorick v. Service Experts Heating and Air Conditioning, et al.,
Case No. 2:13-cv-00081-WOB-CJS) [“Rorick Prior Action”]). During
the pendency of those prior actions, an attorney for Defendants
pointed out to Newberry that, at the time the suit commenced, no
one in Plaintiff’s home was sick or injured physically from
drinking or using the water in Plaintiff’s home and assured
Plaintiff that a Defendant had, in fact, tested the water and
stated that the water was safe for Plaintiff to drink and use.
Plaintiff
conceded
that
there
was
no
present
evidence
of
physical injury nor any established reason to suspect future
harm to health or safety from the water in Plaintiff’s home. (¶¶
39-40).
Thus,
Voluntary
on
May
Dismissal
21,
2013,
Without
Plaintiff
Prejudice
filed
in
the
a
Notice
Newberry
of
Prior
Action. (¶ 39; Newberry Prior Action, DE 7). The Court entered
an
Order
and
dismissed
the
Newberry
Prior
Action
without
prejudice on May 22, 2013. (¶ 39; Newberry Prior Action, DE 8).
It later dismissed the Rorick Prior Action without prejudice, on
November
15,
conditions.”1
2012,
(Rorick
but
Prior
subject
Action,
1
to
DE
certain
16).
“terms
Before
and
that
The November 15, 2013 Order of Conditional Dismissal Without Prejudice in
the Rorick Prior Action imposed a condition that any subsequent action by
“Peter Canavan Newberry” against these Defendants related to this subject
matter “must be re-filed in the United States District Court for the Eastern
District of Kentucky, Covington Division.” (Rorick Prior Action, Doc. No.
4
dismissal, Plaintiff, who is also an attorney, represented his
wife
at
an
October
9,
2013,
hearing.
During
that
hearing,
Newberry explained to the court that he was aware of “physical
injuries” which he believed were related to the water filtration
system.2
He explained that four of his dogs had developed tumors
and one cat had died after drinking the water and that his wife,
Rorick, had been diagnosed with blood clots, intimating that he
believed these injuries were the result of some sort of failure
of the filtration system at bar in that case, which is the same
as the system in this case.
In his Complaint in the present action, he avers that,
beginning January 8, 2015, several of Plaintiff’s pets became
16). However, Plaintiff was not before the Court as a party in that action,
and the Lexington division is the the appropriate jury division for this
action. See LR 3.1(a)(2)(B).
2
THE COURT: Are you suing for more than the 75?
MR. NEWBERRY: For more than the 75?
THE COURT: More than the $75,000 in damages.
MR. NEWBERRY: Yes, Your Honor. There are physical injuries also.
Again, we don’t know what was deposited into the drinking water –
THE COURT: Personal injuries to the people?
MR. NEWBERRY: Yes, Your Honor.
. . .
MR. NEWBERRY: There are four dogs that drink water from the house
watering system. They’ve all developed tumors since this. One cat
has died. And the plaintiff has been diagnosed with blood clots.
We have video of material and then brown material from these
tanks going into our water system.
[DE 12, Ex. 8; also found at Rorick v.
Conditioning, LLC, 2:13-cv-81-WOB, DE 17].
5
Service
Experts
Heating
&
Air
ill with various forms of what were, or were believed to be,
cancer. Some died. (¶¶ 41-44, 46, 52). In the fall of 2015,
Plaintiff’s
headaches,
medical
spouse
a
condition
treatment.
submitted
a
environmental
began
sample
(¶
for
45).
of
laboratory
suffering
reoccurring
which
is
On
the
she
February
household
after
which
receiving
26,
2016,
water
tests
migraine
ongoing
Plaintiff
supply
revealed
to
for
an
the
first time that the household water supply had been contaminated
with known carcinogenic compounds at dangerously high levels. (¶
49). The carcinogens were entering the water supply while the
water filtration systems manufactured by Freije and installed by
SEHAC were supposed to be filtering toxins out of the water
supply. (¶ 50). The water passing through these systems was the
primary source of drinking water for Plaintiff and his spouse,
and was the sole source of drinking water for all of the animals
that died. (¶ 51). After learning of the toxins in the water,
Plaintiff connected to a public water supply and replaced a
water heater and a portion of the plumbing. (¶ 53).
On March 16, 2017, Plaintiff filed the present action. It
is
substantially
similar
to,
and
contains
many
of
the
same
factual averments, as the Newberry Prior Action. Also on March
16,
2017,
Plaintiff’s
spouse,
Kimberly
Rorick,
filed
a
new
action. (Rorick v. Service Experts Heating and Air Conditioning,
et al., Case No. 5:17-cv-00132-JMH). It is substantially similar
6
to Plaintiff’s action and is also substantially similar to, and
contains many of the same factual averments, as the Rorick Prior
Action. Both of these new actions were filed in the Lexington
division of this Court.
II.
In ruling on Defendants’ Rule 12(b)(6) motion, the Court
must “construe the complaint in the light most favorable to the
plaintiff,
accept
its
allegations
as
true,
and
draw
all
reasonable inferences in favor of the plaintiff.” Jones v. City
of Cincinnati, 521 F2d 555, 559 (6th Cir. 2008). The Court is
not bound to accept as true “recitals of the elements of a cause
of action, supported by mere conclusory statements[.]” Ashcroft
v. Iqbal, 556 U.S. 662, 678. “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its
face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
570). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference
that
the
defendant
is
liable
for
the
misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
“Generally, at the motion to dismiss stage, a federal court
may consider only the plaintiff’s complaint.” In re Omnicare,
Inc. Securities Litigation, 769 F.3d 455, 466 (6th Cir. 2014).
7
However, “if a plaintiff references or quotes certain documents,
or if public records refute a plaintiff’s claim, a defendant may
attach those documents to its motion to dismiss, and a court can
then consider them in resolving the Rule 12(b)(6) motion without
converting
the
motion
into
a
Rule
56
motion
for
summary
judgment.” Id. Thus, the Court may consider the prior Newberry
action, as well as the pleadings and public proceedings in the
action, Rorick v. Service Experts Heating & Air Conditioning,
LLC, 2:13-cv-81-WOB (referenced in Plaintiff’s complaint at ¶
37-39).
III.
As an initial matter, the Court agrees with the Defendants
Lennox and Service Experts that Plaintiff has failed to aver any
act or omission by either of them that led to his injuries.
SEHAC was responsible for the sale and installation of a Freije
system and was in contractual privity with Plaintiff on the
facts
averred.
Although
the
Court
must
accept
all
well-pled
factual allegations, the existence of an agency relationship is
a
legal
determination
that
is
not
entitled
to
the
same
presumption. See Papasan v. Allain, 478 U.S. 265, 286 (1986)
(“Although for the purposes of this motion to dismiss we must
take all the factual allegations in the complaint as true, we
are not bound to accept as true a legal conclusion couched as a
8
factual
allegation.”).
“When
attempting
to
plead
liability
through agency, a claimant must plead facts that would support a
finding that the alleged agents had actual or apparent authority
to act on behalf of another.” Pixler v. Huff, 2012 WL 3109492,
at
*9
(W.D.Ky.
July
31,
2012)(internal
quotation
marks
and
citation omitted).
While
Plaintiff
avers
a
parent-subsidiary
relationship
between Defendant SEHAC and both Lennox and Service Experts and
avers that they do business in Kentucky by and through SEHAC,
Plaintiff’s Complaint conflates the idea of vicarious liability
and piercing the corporate veil. Absent some averment that Lenox
and
Service
Experts
were
directly
involved
in
the
sale
or
installation of the Freije system and the subsequent repairs and
failure to reinstall the prior system or were in contractual
privity
with
Plaintiff,
“the
mere
existence
of
a
parent-
subsidiary relationship is insufficient to establish vicarious
liability.”
1907488
at
See
n.
4
Moore
v.
(W.D.Ky.
Lowe’s
May
7,
Companies,
2013);
Inc.,
WL
e.g.,
see,
2013
Beck
v.
Consol. Rail Corp., 394 F. Supp. 2d 632, 640 (S.D.N.Y. 2005).
Moreover,
“[u]nless
incorporation,
personally
a
liable
otherwise
shareholder
for
the
provided
of
acts
a
or
in
the
corporation
debts
of
articles
shall
the
not
of
be
corporation
except that he or she may become personally liable by reason of
9
his own acts or conduct.” KRS § 271B.6-220. Without more, the
averment
that
Lennox
and
Service
Experts
were
“transacting
business . . . through” SEHAC is insufficient to establish the
type of relationship upon which a party may found a case like
this.
Plaintiff
implications
corporate
must
observe
absent
veil
an
should
the
corporate
adequately
be
pleaded
pierced.
See
structure
Sudamax
its
that
claim
and
the
Industria
e
Comercio de Cigarros, Ltda v. Buttes & Ashes, Inc., 516 F. Supp.
2d 841, 847 (W.D. Ky. 2007) (citing Morgan v. O'Neil, 652 S.W.2d
83,
85
(Ky.
1983);
Natural
Resources
and
Environmental
Protection Cabinet v. Williams, 768 S.W.2d 47, 50-51 (Ky. 1989)
(“‘A shareholder may be liable for a corporate debt either by
“piercing the corporate veil” or by statutory authorization’”; a
complaint which alleges neither is fatally defective); Zetter v.
Griffith Aviation, Inc., 2006 WL 1117678, *8 (E.D.Ky. April 25,
2006); First National Bank of Louisville v. Lustig, 809 F.Supp.
444, 446 (E.D.La. 1992) (interpreting Kentucky law); Baseball at
Trotwood,
25566103
LLC
(S.D.
v.
Dayton
Ohio
Professional
Sept.2,
2003)
Baseball
(discussing
Club,
2003
Kentucky
WL
law).
Accordingly, the Court dismisses all claims against Lennox and
SEHAC
for
failure
to
state
a
claim.
12(b)(6).
10
See
Fed.
R.
Civ.
P.
IV.
Next,
the
Court
considers
Plaintiff’s
claims
against
Defendant SEHAC. Count I does not aver wrongdoing on the part of
SEHAC, only by Defendant Freije Treatment Systems, Inc.
It
follows that this claim shall be dismissed to the extent that it
could be construed as a claim against Defendant SEHAC.
V.
Next, the Court concludes that the running of the statute
of limitations is fatal to Counts Two through Five and Count
Twelve
of
the
Complaint
with
respect
to
SEHAC
and
rejects
Plaintiff’s argument that the “discovery rule” saves Counts Two
through Five and Count Twelve of the Complaint.3
Plaintiff’s claims for “negligent failure to warn” (Count
Two), “Contamination of Plaintiff’s Water” (Count Three), and
“Negligence”
personal
(Count
injury,
Four)
injury
against real property.
are
to
subject
personal
to
the
property,
statutes
and
for
trespass
See KRS 413.140(1)(a) (stating that an
action for personal injury must be commenced within one year of
its accrual); KRS 413.125 (stating that actions for injury to
personal
years
of
property
like
accrual);
KRS
animals
must
413.120(4)
be
commenced
(stating
that
within
two
actions
for
trespass against real property must be commenced within five
3
The Court notes that Count I could be dismissed for all of the moving
Defendants upon expiration of the statute of limitations, as well, and that
the claims in Counts Two through Five against the other moving Defendants,
discussed above, would suffer the same fate.
11
years of accrual).
Plaintiff’s claim for “Fraud” (Count V)
avers injuries as “a direct and proximate result” of “fraudulent
misrepresentations” by SEHAC, subject to a five year statute of
limitations.
The
See KRS 413.120(12).
Court
occurred.
considers,
then,
Long-established
when
Kentucky
accrual
law
of
holds
his
claims
that,
“[t]he
accrual of a cause of action means the right to institute and
maintain a suit, and, whenever one person may sue another, a
cause of action has accrued, and the statute begins to run.”
Henderson v. Fielder, 185 Ky. 482, 215 S.W. 187, 188 (1919).
Under the discovery rule, which applies to cases alleging latent
injuries, a cause of action does not accrue until the plaintiff
discovers, or in the exercise of reasonable diligence should
have discovered, not only that he has been injured, but also
that
this
injury
may
have
been
caused
by
the
defendant’s
conduct. Fluke Corp. v. LeMaster, 306 S.W.3d 55, 60 (Ky. 2010).
For purposes of the discovery rule, “injury” is distinguishable
from mere physical harm. Adams v. 3M Co., No. CIV. 12-61-ART,
2013 WL 3367134, at *3 (E.D. Ky. July 5, 2013); Wiseman v.
Alliant Hosps., Inc., 37 S.W.3d 709, 712 (Ky. 2000). “Injury”
“is defined as ‘the invasion of any legally protected interest
of another.’” Id. Plaintiff must simply be aware that he has
been wronged by another. Conway v. Huff, 644 S.W.2d 333, 334
(Ky. 1982). Plaintiff argues that “[t]here was no reason to
12
suspect
a
defendants
connection
until
a
between
these
injuries
household
water
sample
and
of
the
submitted
was
any
for
testing in February 2016 and revealed contamination of the water
in March 2016.” [Pl. Resp. to SEHAC Motion for Summary Judgment
at 6]. Plaintiff clearly indicated, however, that he was aware
of injuries or wrongs sounding in personal injury, injury to
personal property, and trespass to real property related to the
water filtration systems at least as far back as the filing of
his prior suit on March 22, 2013 and in October of 2013 when he
advised the Court in the Prior Rorick Action that there injuries
related to consumption of the water in his household.
In fact,
he has always claimed that he called SEHAC in December 2011
because
his
system
was,
in
his
mind,
failing
and
allowing
discolored water into his home.
Once a plaintiff knows, either actually or constructively,
that the defendant “may” have caused his injury there is no
tolling of the statute of limitation under the discovery rule.
Constructive
knowledge,
through
awareness
of
sufficient
“critical facts” to put the plaintiff on notice, will trigger
the statute of limitations period. Boggs v. 3M Co., No. 11–cv–
57–ART, 2012 WL 3644967, at *3 (E.D.Ky. Aug. 24, 2012) (internal
quotation
marks
omitted)
(collecting
cases),
aff’d
on
other
grounds, No. 12–6062, 2013 WL 2378558 (6th Cir. May 31, 2013).
For
purposes
of
the
discovery
13
rule,
once
the
plaintiff
encounters
facts
that
“should
excite
his
suspicion”
he
effectively has “actual knowledge of th[e] entire claim.” Fluke
Corp. v. LeMaster, 306 S.W.3d 55, 64 (Ky. 2010). Based on what
he said in his prior complaint and in open court as counsel in
the
Rorick
critical
Prior
facts
Action,
to
Plaintiff
prompt
his
own
clearly
had
knowledge
investigation—at
the
of
very
latest—in October of 2013.
Once a plaintiff knows he has been injured, he “has a duty
to
investigate
and
discover
the
identity
of
the
tortfeasor
within the statutory time constraints.” Queensway Fin. Holdings
Ltd. v. Cotton & Allen, P.S.C., 237 S.W.3d 141, 151 (Ky. 2007).
If
he
is
not
reasonably
diligent
in
conducting
such
an
investigation, the discovery rule will not toll the statute of
limitations. See Hazel v. Gen. Motors Corp., 83 F.3d 422, at *3
(6th Cir. 1996). Plaintiff was clearly on notice that he had
been injured in some way at the very latest by March 22, 2013,
when he filed his complaint in the Newberry Prior Action because
he claimed that he “suffered health problems after living in a
home
with
dirty
and
questionable
water
declared
safe
by
Defendant SEHAC” [DE 10-3 at 10; (Complaint in Newberry Prior
Action
at
¶49).]
Accordingly
his
claim
of
fraud,
that
the
results of the water testing were misrepresented to him, accrued
at
the
latest
on
December
30,
2011,
by
which
time
he
has
previously averred that he knew that the jug of water had been
14
left on his kitchen counter and that SEHAC was representing to
him, nonetheless, that his water “tested fine.”
Further,
he
did
not
act
with
reasonable
diligence
to
investigate and discover the cause of his family’s problems with
the water system at that time.
Even though he has averred that
he knew that the water was never taken for testing, he waited
until
2016
system,
to
thus,
have
his
water
tested
his
damages.
mitigating
and
to
disconnect
“Reasonable
the
diligence
means that a plaintiff must be as diligent as the great majority
of persons would [be] in the same or similar circumstances....”
R.T. Vanderbilt Co. v. Franklin, 290 S.W.3d 654, 659 (Ky. Ct.
App. 2009) (citing Blanton v. Cooper Industries, 99 F.Supp.2d
797, 802 (E.D.Ky. 2000) (quoting Sawyer v. Midelfort, 227 Wis.2d
124, 595 N.W.2d 423, 439 (1999)) (internal quotations omitted)).
On the facts presented here, this Court concludes as a matter of
law that a plaintiff has failed to exercise due diligence. See,
e.g.,
Fluke
reasonably
Corp.,
suspected
306
S.W.3d
that
the
at
voltage
61
(“they
meter
should
was
not
have
working
properly and investigated this possibility”).
Paragraph
16
of
the
Complaint
alleges
that
the
water
“turned a dirty blackish brown color” as far back as December
2011, and that he complained to SEHAC about the contamination of
his family’s drinking water.
In other words, Plaintiff was
aware of contamination of the water with some substance at that
15
time.
He cannot claim now that tolling is necessary because he
did not then know for sure with what the water was contaminated
until certain tests were conducted in 2016. Cantrell v. Ashland
Oil, Inc., No. 2006-SC-000763-DG, 2010 WL 1006391, at *10 (Ky.
Mar. 18, 2010) (affirming dismissal of water contamination claim
where plaintiffs may not have known the extent and exact nature
of the contamination but nonetheless knew of the injury and that
it may have been caused by defendant).
Alternatively,
Plaintiff
argues
that
Defendant
SEHAC
is
estopped from asserting the statute of limitations because SEHAC
was,
toxic
itself,
responsible
contamination
when
for
his
delay
an
agent
in
“discovering”
of
SEHAC
advised
the
him
on
December 30, 2011, that his “water tested fine” even with the
obvious
discoloration
or
because
SEHAC’s
counsel
represented
during the first action in 2013 that his household water quality
was fine as of the tests conducted in December 2011. “It is
well-established
that
the
reliance
necessary
to
establish
a
claim of equitable estoppel must be reasonable.” Aculty v. Great
West Cas. Co., 2005 WL 3488359, 2 (Ky. Ct. App. Dec. 22, 2005)
(citing Gailor v. Alsabi, 990 S.W.2d 597 (Ky. 1999)); W. Diamond
LLC v. Barnes, No. 4:12CV-28-JHM, 2014 WL 314474, at *6 (W.D.
Ky.
Jan.
28,
representations
2014).
from
Plaintiff
counsel
alleges
that
there
that
was
he
relied
nothing
to
on
be
discovered from SEHAC during the prior litigation, but courts
16
have routinely held that it is unreasonable for a party “to rely
on the advice of adversary counsel...when both parties are aware
that adverse interests are being pursued.” See, e.g., Matsumura
v. Benihana Nat. Corp., 542 F. Supp. 2d 245, 257 (S.D.N.Y. 2008)
(citing
Kregos
v.
Associated
Press,
3
F.3d
656,
665
(2d
Cir.1993)). Accordingly, Defendant’s reliance on any statements
by
Defendant’s
attorney
would
be
unreasonable
and
could
not
support an estoppel because Plaintiff could not have reasonably
relied on a statement by an adversary or its counsel in the
context of the prior litigation. More to the point, he and his
wife had concerns about the water and what it was doing to their
family and their property, they initiated suit, and he had the
opportunity to discover what Defendant knew about the water in
their home when a discovery order was set in place in the Rorick
prior
litigation,
but
she
–
through
Newberry,
as
counsel
–
elected to dismiss her case voluntarily and did not explore the
matter further at that time of their own volition.
Further, Plaintiff always had control and access of the
allegedly faulty filtration system in question and the water
that flowed through it could have had it tested at any time.
While he says that he chose not to do so in part because SEHAC
told him the water was fine to drink, the Court concludes that
it was not reasonable for him to rely on SEHAC’s December 30,
2011, statement that the water was fine for consumption based on
17
its testing because he has previously represented to the court,
in the Prior Newberry Action, that SEHAC made false statements
concerning water tests because it “never took the water from
Plaintiff’s kitchen to be tested” and that he knew this because
SEHAC’s employee or agent took a water sample and then “left the
water sample in the jug on the Plaintiff’s kitchen counter” on
December 20, 2011. [DE 10-3 at 10, (Complaint in Newberry Prior
Action at ¶¶10, 45).]
The five year statute of limitations for
injury to real property, including any period of tolling for his
prior
lawsuit,
expired
well
before
the
present
suit
was
commenced on March 16, 2017.
Even
if
the
Court
assumes
that
he
knew
only
of
the
potential for damage to his real property in late 2011, it is
clear
that
he
discovered
or
should
have
discovered
personal
injuries or personal property injury to his pets no later than
sometime between December 30, 2011, and October 9, 2013. He
began to suspect that his family and their property were being
harmed by their drinking water, so much so that, when he and his
wife brought suits in 2013, he averred personal injury in his
own Complaint and made his statements about his pets and his
wife’s health issues in open court while representing her.
The
Court concludes that this was enough to set into motion his
obligation to be diligent in discovering any claims for personal
injury or injury to personal property and that any category of
18
claims.
Because his claims for personal injury and injury to
personal property accrued no later than October 9, 2013, which
was 3 years, 5 months, and 8 days prior to filing suit in this
matter on March 16, 2017, the claims are barred by operation of
the statute of limitations..
V.
Plaintiff’s
breach
Nine)5,
of
claims
contract
and
of
(Count
conversion
fraud
(Count
Eight)4,
(Count
Seven
unjust
Ten)6,
and
Twelve),
enrichment
some
of
(Count
which
are
duplicative of earlier claims and all of which were asserted in
the earlier action and which relied upon actions taken at the
latest
on
January
6,
2012,
according
to
the
Newberry
Prior
Complaint, are also time barred. See KRS § 413.120 (action upon
a contract not in writing, express or implied, subject to a five
year statute of limitations); KRS 413.120(12) (action for fraud
or mistake subject to five year statute of limitations); KRS
413.125 (conversion subject to a two year statute of limitations
4
The gist of this claim is that, “Defendant SEHAC breached the
terms of its agreement with Plaintiff by failing to properly
install, service and/or repair the whole house toxin shield
water filtration system.” (Complaint, DE 1 at ¶ 99). Plaintiff
does not allege the existence of a written contract.
5 Plaintiff alleges that Plaintiff conferred a benefit on SEHAC
in the form of a payment of $3,200 for the system “which was
never properly installed, serviced or replaced” and retention of
that benefit would be unjust. (Complaint, DE 1, at ¶¶ 101-104).
6 Plaintiff alleges that Defendant SEHAC committed conversion
when it “took Plaintiff’s Aqua-Pure backwash filter system
without Plaintiff’s knowledge or consent” and “never brought it
back” or paid for it.
19
period); Cameo, LLC v. Techni-Coat Int’l, N.V./S.A., No. 5:14CV-256-JMH,
2017
WL
690194,
at
*4
(E.D.
Ky.
Feb.
21,
2017)
(Hood, J.); Ellis v. Arrowood Indem. Co., Civ. A. No. 12-140ART, 2014 WL 2818458, at *7 (E.D. Ky. June 23, 2014) (“Multiple
courts
have
identified
§
413.120(1),
for
actions
‘upon
a
contract not in writing, express or implied,’ as the appropriate
statute
of
limitations
for
unjust
enrichment
claims.”);
KRS
413.125 (“[a]n action for the taking, detaining or injuring of
personal
property,
including
an
action
for
specific
recovery
shall be commenced within two (2) years from the time the cause
of action accrued”); Madison Capital Co., LLC v. S & S Salvage,
LLC, 765 F. Supp. 2d 923, 932 (W.D. Ky. 2011) (citing Rich &
Rich P'ship v. Poetman Records USA, Inc., 714 F.Supp.2d 657, 669
(E.D.Ky.2010)) (applying KRS 413.125 to a conversion claim).
The same holds for Plaintiff’s Count Six for breach of
warranty, although Plaintiff does not even attempt to defend
that count in his Response. It is subject to a four-year statute
of limitation, was originally asserted as Plaintiff’s “Second
Cause of Action” in the Prior Newberry Action, and is therefore
time-barred. See KRS 355.2-725(2) (“A cause of action accrues
when the breach occurs, regardless of the aggrieved party’s lack
of knowledge of the breach,” and a “breach of warranty occurs
when tender of delivery is made, except that where a warranty
explicitly
extends
to
future
performance
20
of
the
goods
and
discovery of the breach must await the time of such performance
the cause of action accrues when the breach is or should have
been discovered.”).
Thus,
Plaintiff’s
claims
against
SEHAC
in
Counts
Two
through Ten and Twelve are all time-barred or duplicative but
still time-barred, and the Court will dismiss them.
V.
Plaintiff’s
“Eleventh
Cause
of
Action,”
for
“Malice,
Oppression and Fraud” (Complaint, DE 1, at ¶¶ 113-115), avers
that
he
“is
entitled
to
an
award
of
punitive
damages
and
attorneys’ fees.” This “claim” is actually a prayer for relief,
not a separate cause of action, and will be dismissed in the
absence of any claim against SEHAC upon which such damages might
be founded. See Toon v. City of Hopkinsville, No. 5:09–CV–37,
2011 WL 1560590, at *3 (W.D.Ky. Apr. 14, 2011) (“To the extent
that Baird is seeking to assert punitive damages as a separate
cause of action, the claim will be dismissed”); Dalton v. Animas
Corp., 913 F. Supp. 2d 370, 378 (W.D. Ky. 2012) (““[A] claim for
punitive damages is not a separate cause of action, but a remedy
potentially available for another cause of action.”); Lopreato
v. Select Specialty Hosp. N. Kentucky, 640 F. App’x 438, 444–45
(6th Cir. 2016).
21
Accordingly, IT IS ORDERED:
(1)
that
the
Motion
to
Dismiss
[DE
10]
by
Lennox
Industries, Inc., is GRANTED;
(2)
that the Motion to Dismiss [DE 11] by Service Experts
Heating & Air Conditioning, LLC, is GRANTED; and
(3)
that the Motion to Dismiss [DE 12] by Service Experts,
LLC, is GRANTED.
The Court being adequately advised, it is FURTHER ORDERED:
(4)
that Plaintiff’s Motion for an Extension of Time in
which to perfect service on Defendant Freije Treatment Systems,
Inc. [DE 20] is GRANTED and that Plaintiff shall have thirty
(30) days from the date of this Order in which to properly serve
Defendant Freije.
This the 5th day of April, 2018.
22
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