Foremost Insurance Company Grand Rapids, Michigan v. Electrolux Home Products, Inc. et al

Filing 21

ORDER granting 7 Agreed Motion for Consent Order and for Leave to File Second Amended Petition. Plaintiff is granted leave to file its Second Amended Petition, on or before 10/24/2014, without further motion. Defendant Electroluxs 3 Motion to D ismiss or Alternatively, Motion for a More Definite Statement is GRANTED to the extent it seeks, in the alternative to dismissal, that the Plaintiff provides a More Definite Statement pursuant to Rule 8(a) of the Federal Rules of Civil Procedure. The parties have agreed that the relief granted to Electrolux is that Plaintiff will file a Second Amended Petition.Defendant Conns 5 Motion to Dismiss or Alternatively, Motion for a More Definite Statement is GRANTED to the extent it seeks, i n the alternative to dismissal, that the Plaintiff provides a More Definite Statement pursuant to Rule 8(a) of the Federal Rules of Civil Procedure. The parties have agreed that the relief granted to Conn is that Plaintiff will file a Second Amended Petition. Signed by Magistrate Judge Richard L. Bourgeois, Jr on 9/24/2014. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

FOREMOST INSURANCE COMPANY
GRAND RAPIDS, MICHIGAN, as
Subrogee of THOMAS LAPORTE

CIVIL ACTION
NO. 14-CV-444-SDD-RLB
C/W 14-CV-496-SDD-RLB

VERSUS
ELECTROLUX HOME PRODUCTS, INC.
AND CONN APPLIANCES, INC.

Pertains to No. 14-cv-444

ORDER
Before the court are Electrolux Home Products, Inc.’s Motion to Dismiss or
Alternatively, Motion for a More Definite Statement filed on July 23, 2014 (R. Doc. 3); Conn
Appliances, Inc.’s Motion to Dismiss or Alternatively, Motion for a More Definite Statement
filed on August 1, 2014 (R. Doc. 5); and Plaintiff’s Agreed Motion for Consent Order and for
Leave to File its Second Amended Petition filed on August 1, 2014 (R. Doc. 7).
This action was filed by Foremost Insurance Company Grand Rapids (“Foremost” or
“Plaintiff”) in state court against Electrolux Home Products, Inc. (“Electrolux”) and Conn
Appliances, Inc. (“Conn”) (collectively, “Defendants”). According to its Amended Petition filed
in state court, Foremost seeks to recover from the Defendants certain insurance proceeds paid to,
or on behalf of, Thomas Laporte for fire damage to his home. (R. Doc. 1-4, “Amended
Petition”). Foremost asserts that a dryer purchased by Mr. Laporte’s tenant, Holly Hildebrand,
caused the underlying fire either because the dryer was defective or improperly installed.
(Amended Petition ¶¶ 3-6). Foremost is seeking recovery from Electrolux (the manufacturer of
the dryer) and Conn (the installer of the dryer) under various products liability and general

negligence theories. (Amended Petition ¶¶ 7-8). Foremost asserts that the Defendants knew or
should have known of the dryer’s alleged defects. (Amended Petition ¶ 9).
After removing the action on July 17, 2014 (R. Doc. 1), the Defendants filed their
respective Motions. The Defendants primarily seek dismissal of their claims pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. Electrolux seeks dismissal of the claims raised
against it on the basis that the Amended Petition provides insufficient factual allegations for
recovery pursuant to the Louisiana Products Liability Act, La. R.S. § 9:2800.1 et seq, (“LPLA”)
or under general negligence theories. (R. Doc. 3-1 at 4-8). 1 Similarly, Conn seeks dismissal of
the claims raised against it on the basis that the Amended Petition provides insufficient factual
allegations for recovery pursuant general negligence theories and the Plaintiff has not alleged
facts supporting the allegation that Conn had knowledge of any defect with the dryer. (R. Doc.
5-1 at 3-4).
Both Defendants alternatively move for a more definite statement pursuant to Rule 8(a)
of the Federal Rules of Civil Procedure. (R. Doc. 3-1 at 8-9; R. Doc. 5-1 at 5).
On August 13, 2014, the Plaintiff filed, on behalf of itself and the Defendants, an
“Agreed Motion for Consent Order and for Leave to File Its Second Amended Petition.” (R.
Doc. 7). The Agreed Motion represents that the parties have agreed to the following resolution
of the Defendants’ Motions:
a.

Foremost agrees that a Consent Order may be issued by which the pending
Motions to Dismiss or Alternatively, Motion for a More Definite
Statement are granted but which also allows Foremost to file its Second
Amended Petition for Damages. A proposed order for this purpose is
attached.

1

Electrolux further argues that the Plaintiff’s general negligence claim fails because the exclusive theories
of liability against manufacturers sued for product liability are supplied solely by the LPLA. (R. Doc. 3-1
at 8).
2

b.

The Parties have agreed to conduct a joint evidence examination of the
subject dryer and related artifacts harvested from the scene within the next
sixty (60) days, on or before October 10, 2014.

c.

Within fourteen (14) days thereof, or on or before October 24, 2014,
Plaintiff, Foremost, has agreed to file its Second Amended Petition for
Damages in order to voluntarily provide a more definite statement of
its claims.

(R. Doc. 7at 2-3). The Agreed Motion specifically seeks leave of court, pursuant to Rule
15(a) of the Federal Rules of Civil Procedure, for the Plaintiff to file its Second Amended
Petition for Damages on or before October 24, 2014. (R. Doc. 7 at 3).
Based on the foregoing Agreed Motion, the court will grant the relief requested by the
parties.
IT IS ORDERED that Plaintiff’s Agreed Motion for Consent Order and for Leave to
File its Second Amended Petition (R. Doc. 7) is GRANTED. Plaintiff is granted leave to file its
Second Amended Petition, on or before October 24, 2014, without further motion. Defendants
retain all rights to refile motions challenging the sufficiency of the Second Amended Petition.
The parties may conduct a joint evidence examination of the subject dryer and related artifacts
harvested from the scene as agreed to by the parties prior to the filing of the Second Amended
Petition.
IT IS FURTHER ORDERED that Defendant Electrolux’s Motion to Dismiss or
Alternatively, Motion for a More Definite Statement (R. Doc. 3) is GRANTED to the extent it
seeks, in the alternative to dismissal, that the Plaintiff provides a More Definite Statement
pursuant to Rule 8(a) of the Federal Rules of Civil Procedure. The parties have agreed that the
relief granted to Electrolux is that Plaintiff will file a Second Amended Petition.
IT IS FURTHER ORDERED that Defendant Conn’s Motion to Dismiss or
Alternatively, Motion for a More Definite Statement (R. Doc. 5) is GRANTED to the extent it
3

seeks, in the alternative to dismissal, that the Plaintiff provides a More Definite Statement
pursuant to Rule 8(a) of the Federal Rules of Civil Procedure. The parties have agreed that the
relief granted to Conn is that Plaintiff will file a Second Amended Petition.
Signed in Baton Rouge, Louisiana, on September 24, 2014.

S

RICHARD L. BOURGEOIS, JR.
UNITED STATES MAGISTRATE JUDGE

4