State Auto Property & Casualty Insurance Company v. Cap Electrical et al
STRICKEN - MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 7/20/2017. (bmhs, Deputy Clerk) Modified on 7/20/2017 (bmhs, Deputy Clerk).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STATE AUTO PROPERTY AND
CASUALTY INSURANCE CO.,
as subrogee of Milton and Carol McAllister
Investment Property LLC d/b/a Bigfoots
Steak and Hoagie Restaurant
CAP ELECTRIC, INC.,
AND LIGHT CO.
Civil Action No. RDB-16-3572
CAP ELECTRIC, INC.
DELMARVA POWER AND
Plaintiff State Auto Property and Casualty Insurance Company, as subrogee of Milton
and Carol McAllister Investment Property, LLC d/b/a Bigfoots Steak and Hoagie
Restaurant (“Plaintiff” or “State Auto”) has brought this action against Defendants Cap
Electric (“CAP”) and Delmarva Power and Light Company (“DPL”) alleging Negligence by
both CAP and DPL (Counts I & III), Breach of Contract by CAP (Count II), and Gross
Negligence by DPL (Count IV) in connection with a fire that destroyed the Bigfoots Steak
and Hoagie Restaurant in Rising Sun, Maryland (ECF No. 19.) Based on State Auto’s suit,
CAP has filed a Crossclaim for indemnification and contribution against DPL. (ECF No.
Currently pending before this Court are Defendant DPL’s Motion to Dismiss the
Amended Complaint (ECF No. 25) and Cross-Defendant DPL’s Motion to Dismiss CAP’s
Amended Crossclaim (ECF No. 42).1 The Court has reviewed the parties’ submissions, and
no hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the reasons stated herein,
DPL’s Motion to Dismiss State Auto’s Amended Complaint (ECF No. 25) is DENIED.
DPL’s Motion to Dismiss CAP’s Crossclaim (ECF No. 42) is GRANTED IN PART and
DENIED IN PART. Specifically, it is GRANTED as to CAP’s indemnity claim, which is
dismissed, and it is DENIED as to CAP’s contribution claim, which remains pending.
At the motion to dismiss stage, this Court accepts as true the facts alleged in the
Plaintiff's complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).
Bigfoots Steak and Hoagie is a sandwich restaurant in Rising Sun, Maryland owned
by Plaintiff Milton and Carol McAllister Investment Properties. (Am. Compl. ECF No. 19 at
Prior to June 7, 2015, Bigfoots retained CAP to periodically repair electric equipment
and assist in electrical service to the restaurant. (Id. ¶ 8.) Pursuant to the service agreement,
CAP upgraded the pre-existing service, installed a new electrical panel/trough, and replaced
Also pending before this Court is State Auto’s Cross-Motion to Allow Discovery and Defer Defendant’s
Motion to Dismiss. (ECF No. 36.) In light of the result reached herein Plaintiff’s Motion is DENIED AS
MOOT. Discovery will proceed in accordance with the Scheduling Order to be issued in this case.
the electrical meter for the restaurant. (Id.) On or about June 7, 2015, a fire originated on the
exterior of the Bigfoots Restaurant building at and in the electrical panel/trough for the
restaurant. (Id. ¶ 13.) Plaintiff alleges that the fire spread from the electrical panel/trough and
damaged Bigfoots’ real and personal property. (Id. ¶ 13.) Plaintiff also alleges the fire was
caused by CAP’s improper and defective installation of the electrical wiring for the
restaurant’s electrical meter and the electrical panel/trough. (Id. ¶ 14.)
The Rising Sun Fire Department responded promptly to the scene of the fire. (ECF
No. 19 at ¶ 15.) As the fire’s origin was electrical it, created a risk of electrocution to the
firefighters. Accordingly, the Rising Sun Fire Department notified DPL of the restaurant fire
at 12:07 p.m., consistent with the plans for “Priority One” emergencies.2 (Id. ¶ 15.) When
notified, DPL replied that it would “get someone right out there.” (Id. ¶ 16.)
The fire department, acting in accordance with training and instructions it received
from DPL, suspended fire suppression while it waited for DPL to arrive at the scene. (ECF
No. 19 at ¶ 17.) In doing so, the Fire Department did not apply water on a live electrical
panel, as it posed an electrocution hazard. (Id. ¶ 18.) Despite repeated assurances from DPL
that it would respond promptly to this “Priority One” emergency, it took at least an hour for
a DPL Technician to report to the scene. (Id. ¶ 19.) Plaintiff alleges that on prior occasions,
DPL responded to Priority One emergencies in less than 15 minutes after receiving
Prior to June 7, 2015, DPL worked with regional fire departments including the Rising Sun Fire Department
to develop a classification system pursuant to which DPL would prioritize responding to electrical
emergencies. (ECF No. 19 at ¶ 9.) DPL identified three tiers of electrical emergencies to the Rising Sun Fire
Department: Priority One, Priority Two, and Priority Three. (Id. ¶ 11.) Priority One is characterized as a fire
structure which has an electrical problem that cannot be controlled by shutting off the structure’s main
electrical switch to interrupt electrical service. (Id. ¶ 11.) Prior to June 7, 2015, Plaintiff alleges, DPL was
aware that the Rising Sun Fire Department relied on DPL in assisting the suppression of Priority One fires.
(Id. ¶ 12.)
notification of the emergency. (Id. ¶ 20.) Plaintiff further alleges that DPL’s delay resulted in
the Fire Department’s inability to suppress the flames, allowing the fire to spread from the
electrical panel/trough into the restaurant, causing additional damage. (Id. ¶ 23.) The fire
resulted in damages exceeding five hundred thousand dollars ($500,000.00) to Bigfoots
Restaurant. (Id. ¶ 24.)
On October 28, 2016, Plaintiff State Auto filed its initial Complaint.3 (ECF No. 1.)
Plaintiff filed its Amended Complaint pursuant to Federal Rule of Civil Procedure
15(a)(1)(B) on December 21, 2016. (ECF No. 19.) On January 13, 2017, Defendant DPL
filed a Motion to Dismiss the Amended Complaint. (ECF No. 25.) CAP filed an Amended
Crossclaim against DPL and included claims for Indemnification and/or Contribution on
February 17, 2017. (ECF No. 38.) On February 28, 2017, Cross-Defendant DPL filed a
Motion to Dismiss Defendant CAP’s Amended Crossclaim Against DPL. (ECF No. 42.)
STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a
complaint if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). The purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to
resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006); see also Goines v. Valley Cmty.
Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016).
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). To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
State Auto now files this complaint as a subrogee of Bigfoots based on Bigfoot’s insurance policy with State
Auto. (ECF No. 19 at ¶ 27.)
sufficient to “state a claim to relief that is plausible on its face.” Bell Atl., Corp. v. Twombly,
550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Under the plausibility
standard, a complaint must contain “more than labels and conclusions” or a “formulaic
recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555; see Painter’s Mill
Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
In reviewing a Rule 12(b)(6) motion to dismiss, a court “accepts the facts as alleged”
in the Plaintiff’s complaint. Quintana v. City of Alexandria, et al., No. 16-1630, 2017 WL
2438774, at *1 (4th Cir. June 6, 2017) (citing LeSeur-Richmond Slate Corp. v. Fehrer, 666 F.3d
261, 264 (4th Cir. 2012)); Semenova v. Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir.
2017). “At the motion to dismiss stage, [the court must] accept as true all of the well-pleaded
allegations and view the complaint in the light most favorable to [Plaintiff].” Id. While a
court must accept as true all the factual allegations contained in the complaint, legal
conclusions drawn from those facts are not afforded such deference. Iqbal, 556 U.S. at 678
(“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to plead a claim); see A Society Without a Name v. Virginia, 655 F.3d
342, 346 (4th. Cir. 2011).
I. DPL’s Motion to Dismiss the Amended Complaint (ECF No. 25)
In support of its Motion to Dismiss plaintiff’s negligence claim (Count III), DPL
relies on its Tariff with the Maryland Public Service Commission. Specifically, DPL points
to Section X(A)(2) of the Tariff, which provides that:
The Company shall not be liable for any delay of performance, failure to
perform or failure of equipment for any cause other than the gross negligence
or willful misconduct of the Company, and shall not be liable for Damages
from causes beyond its reasonable control including but not limited to: acts of
God, storm, fire, flood, lightning, explosion or other catastrophes; any law,
order, regulation, direction, action or request of the United States government
or of any other government, including state and local governments having or
claiming jurisdiction over the Company; acts or omissions of other entities;
preemption of existing service in compliance with national emergencies;
insurrections; wars; riots; unavailability of rights-of-way or materials, or strikes,
lockouts, work stoppages or other labor difficulties.
(Def. DPL Ex. 1, ECF No. 25.) Based on this grant of immunity for certain simple
negligence claims, DPL argues that plaintiff’s negligence claim must be dismissed.
State Auto argues in opposition that the tariff language is inapplicable to the
allegations raised in its Amended Complaint. (ECF No. 36 at 12-16.) In particular, State
Auto points to the decision of this Court in Harford Mut. Ins. Co. v. Potomac Elec. Power Co.,
RDB-02-2412, 2003 WL 23304961, at *6 (D. Md. Sept. 4, 2003), where this Court concluded
that the tariff immunity raised by a similarly situated utility company did not preclude suit
where the injuries alleged were unrelated to the delivery of electric power. DPL asserts in its
Reply brief that the tariff immunity found inapplicable in Hartford is distinguishable from
that contained in its own Tariff; then, DPL asserts, the decision in Hartford is inapplicable.
While DPL is correct that the language of the PEPCO tariff in Hartford is
distinguishable from that of its own Tariff, the grant of immunity in both tariffs is not
absolute, but, rather, pertains to liabilities arising out of the delivery of electric power.
Indeed, the section of the DPL Tariff in which the grant of immunity appears is entitled
“Section X – Continuity of Service by Company.” (Def. DPL Ex. 1, ECF No. 25.) Part
A(1) of that Section provides that, “[t]he Company does not guarantee continuous
uninterrupted electric service and, except as provided herein, shall not be liable for any
change in, interruption, phase reversal, or resumption of service.” (Id.) (emphasis
added.) As the Tariff language itself makes clear, the limitation of liability for negligence
claims relates to the delivery of electric power.
Nor does Part A(2) of this Section of the Tariff serve to widen its grant of immunity.
This part provides that, “[t]he Company shall not be liable for any delay of performance,
failure to perform or failure of equipment for any cause other than the gross negligence
or willful misconduct of the Company…,” (Def. DPL Ex. 1, ECF No. 25.) Viewed in the
context of the Section title and the preceding paragraph, this grant of immunity again
pertains to injuries caused by DPL’s failure to provide continuous service—not to all
negligent acts and omissions.
The proper scope of DPL’s tariff immunity is illustrated in Credit Plus, Inc. v. Delmarva
Power & Light Co., JKB-15-0443, 2015 WL 6736447, at *2 (D. Md. Nov. 4, 2015), a 2016
decision of this Court. In Credit Plus, the plaintiff alleged that its air conditioning units were
damaged by DPL’s reversal of power flow to the units. Id. This Court denied the plaintiff’s
Motion to Amend the Complaint because the plaintiff there did not state a plausible claim
for gross negligence, and the only factual allegations made were based on DPL’s reversal of
power flow—negligent acts within the scope of the Tariff immunity.
Similarly, in The Maryland Jockey Club of Baltimore City, Inc. v. Baltimore Gas & Elec. Co.,
No. 2364 Sept. Term 2001, 2002 WL 32123994, at *2 (Md. Ct. Spec. App. Dec. 17, 2002)
(unreported), the Maryland Court of Special Appeals affirmed the Circuit Court’s dismissal
of the plaintiff’s negligence claim involving damages incurred as a result of a power outage
on Preakness Day 1998 at Pimlico Race Course. The alleged “the loss of lights and air
conditioning as well as the loss of power to parimutuel equipment and to kitchen, dining,
and beverage facilities” plainly resulted from the loss of electric service to the complex—and
fell within the scope of BGE’s similar Tariff-based immunity.4 Id.
By contrast, in Harford, this Court held that the PEPCO tariff’s grant of immunity for
power surges, fluctuations, and interruptions—that is, activities tied to the delivery of electric
power—did not bar a negligence claim based on PEPCO’s creation of a dangerous
condition on a roadway. See Harford Mut. Ins. Co. v. Potomac Elec. Power Co., No. RDB-02-2412,
2003 WL 23304961, at *5 (D. Md. Sept. 4, 2003). Thus, the plaintiff driver whose vehicle
struck a low-hanging power line could bring a negligence claim against the utility. Id.
The holding in Harford is consistent with the underlying policy principle on which the
Tariff immunity is based. As set forth in the Maryland Public Service Commission’s 1991
…such tariffs represent a proper balancing between a utility’s and its
customers’ economic interests, and the wide-spread availability of protective
devices and insurance coverage places the cost for such power fluctuations
on those customers who need special protection for such events rather than
the general body of ratepayers who would otherwise be subsidizing customers
with special needs.
Re Liab. of Elec. Power Companies for Injury or Damages Resulting from Problems in the Delivery of Elec.
Power, 82 Md. P.S.C. 92 (Apr. 5, 1991) (emphasis added). That is, while the PSC explained
that utilities should not be liable for service delivery issues which customers can take
Neither the Maryland Court of Special Appeals nor the Circuit Court below distinguished the distinct types
of damages sought by the plaintiffs in Jockey Club. That is, both courts appear to have conflated the power
delivery-based damages suffered by Pimlico’s owners/operators (damages which are properly within the
scope of BGE’s tariff) with the property damages claimed by the racetrack (injuries which might fall outside
the scope of the tariff). Jockey Club, 2002 WL 32123994, at *2.
precautions to avoid, this policy does not immunize the utilities from all duties to exercise
In light of the foregoing, it is clear that DPL’s arguments overstate the scope of the
immunity granted to it by the Tariff. While DPL would not be subject to claims premised
on its negligent delivery of electric power to plaintiff, State Auto’s allegations are instead
based on DPL’s failure to properly respond to a known emergency:
(a) “Defendant failed to timely, promptly and properly respond to the
fire as a Priority One Emergency Response;”
(b) “Defendant failed to properly, adequately and safely supervise and
instruct the activities of its employees necessary to respond to the
Priority One Emergency Response for the restaurant;”
(c) “Defendant created or permitted dangerous and/or defective
conditions to exist when defendant knew or should have known that
such conditions would create an unreasonable risk of damage and
(ECF No. 19 at ¶ 36.) Accordingly, as State Auto’s negligence claims fall outside the scope
of DPL’s Tariff immunity, DPL’s Motion to Dismiss State Auto’s negligence claim (Count
III) must be DENIED.
B. Gross Negligence
With respect to Plaintiff’s gross negligence claim (Count IV), DPL argues that
because Plaintiff cannot prove that DPL acted with malice, the claim for gross negligence
also must be dismissed. (ECF No. 25 at 14.) Plaintiff in opposition argues that gross
negligence can exist even without malicious conduct and that the “reckless conduct” which
is alleged reaches the standard for gross negligence. (ECF No. 36 at 16-17.); Barbre v. Pope,
935 A.2d 699, 717, 402 Md. 157, 187 (Md. 2007).
Under Maryland law, gross negligence entails “an intentional failure to perform a
manifest duty in reckless disregard of the consequences as affecting the life or property of
another, and [it] also implies a thoughtless disregard of the consequences without an exertion
of any effort to avoid them.” Brooks v. Jenkins, 220 Md. App. 444, 459, 104 A.3d 899 (Md. Ct.
Spec. App. 2014) (quoting Barbre, 935 A.2d at 717); See also Marriott Co. v. Potomac Telephone
Co. of Maryland, 124 Md. App. 463, 478, 723 A.2d 454, 462 (1998); See also Great Northern Ins.
Co. v. Recall Total Information Management, Inc., 2014 WL 3845891 at *4-5 (D. Md. Aug. 1, 2014)
(finding that the plaintiff’s allegations that the defendant failed to properly address a
hazardous condition which posed a “substantial risk” to life and property met the pleading
standard for gross negligence). Gross negligence is “something more than simply negligence
and likely more akin to reckless conduct.” Barbre, 935 A.2d at 717.
In this case, State Auto alleges that DPL informed the Fire Department that it would
respond promptly to the “Priority One” emergency, even though DPL was fully aware that it
could not do so. (ECF No. 19 at ¶ 21.) Additionally, State Auto alleges that DPL did not
assign an available technician to the restaurant’s fire. (Id. ¶ 22.) Because a technician did not
arrive until an hour after the Fire Department placed its initial call, the fire was able to
spread unrestrained and cause further damage to the restaurant. (Id. ¶¶ 19, 23.) Accepting
these facts as true, Plaintiff states a plausible claim that DPL intentionally disregarded its
manifest duty to exercise reasonable care in response to a hazardous fire which endangered
the public and damaged property.5 Accordingly, DPL’s Motion to Dismiss the gross
negligence claim must be DENIED.
II. DPL’s Motion to Dismiss CAP’s Crossclaim (ECF No. 42)
CAP has filed a Crossclaim against DPL for indemnification and contribution in the
event CAP should be liable to State Auto. (ECF No. 38.) In its Crossclaim, CAP alleges that
because CAP was only passively negligent and Cross-Defendant DPL was grossly negligent
in carrying out its duties to the Plaintiff, CAP is entitled to indemnity from DPL. (Id. at 1-3.)
DPL moves to dismiss the Crossclaim. (ECF No. 42.) In support of its Motion, DPL argues
that because CAP was actively negligent and there was no pre-existing relationship between
CAP and DPL, Cross-Plaintiff CAP’s Crossclaim for indemnity should be dismissed. (Id. at
Indemnification involves the shifting of the entire loss from one party onto the other.
Baker, Watts & Co. v. Miles & Stockbridge, 876 F.2d 1101, 1103 (4th Cir. 1989). The right to
indemnity is an obligation enforced between the wrongdoers. See Pyramid Condominium Ass’n
v. Morgan, 606 F. Supp. 592, 598 (D. Md. 1985). There must be a prior existing legal
relationship between the wrongdoers prior to the tort in order to justify the indemnity claim.
See Franklin v. Morrison, 350 Md. 144, 162, 711 A.2d 177, 188 (1998); Council of Co-Owners
Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 517 A.2d 336, 308 Md. 18 (1986).
5 In another case involving alleged gross negligence, this Court found that Plaintiff stated a plausible claim for
gross negligence based on the defendant’s failure to institute safeguards which it had promised. See Pasternak
& Fidis, P.C. v. Recall Total Information Management, Inc., 95 F.Supp.3d 886 (D. Md. 2015).The facts in this case
are even more compelling, as DPL’s alleged failure is one of failing to make an effort to exercise reasonable
care in addressing a hazardous condition to the public, first responders, and property.
Cross-Plaintiff CAP alleges no prior existing relationship between itself and DPL. On
this basis alone, CAP cannot obtain indemnification and the corresponding claim against
DPL is DISMISSED.6
CAP also alleges that it is entitled to contribution based on DPL’s negligence and
gross negligence. (ECF No. 38 at 3.) DPL argues that CAP has failed to plead a plausible
claim against DPL. (ECF No. 42 at 2.)
The Maryland Uniform Contribution Among Joint Tort–Feasors Act (UCATA), Md.
Code Ann. § 3–1401, states that “[t]he right of contribution exists among joint tortfeasors.” Md. Code Ann. § 3–1402(a). In order for there to be a cause of action against a
third-party defendant, the defendant must be directly liable to the plaintiff. Kelly v. Fullwood
Foods, Inc., 111 F.Supp.2d 712, 715 (D. Md. 2000) (citing Montgomery Cnty. v. Valk Mfg.
Co., 562 A.2d 1246, 1249, 317 Md. 185, 192 (Md. 1989)). Furthermore, the right to
contribution can be established when independent tortfeasors contribute to the same injury.
Parler & Wobber v. Miles & Stockbridge. 756 A.2d 526, 535, 359 Md. 671, 687 (2000)
(“[c]ontribution rests on common liability, not on joint negligence or joint tort. Common
liability exists when two or more actors are liable to an injured party for the same damages,
even though their liability may rest on different grounds.”).
Under Maryland law, indemnity is determined by the active/passive negligence rule; therefore, a defendant whose
negligence was passive may seek indemnification from a tortfeasor’s whose negligence was active. See Franklin v. Morrison,
350 Md. 144, 711 A.2d 177 (1998); Pyramid, 606 F. Supp. at 599. It is well established under Maryland law that if a
tortfeasor is active, then that tortfeasor cannot obtain indemnification. Franklin, 350 Md. at 163. To determine whether a
tortfeasor is actively or passively negligent, courts refer to the plaintiff’s Complaint. Pyramid, 606 F.Supp. at 596. In light
of there being no pre-existing relationship between DPL and CAP, this Court need not determine whether CAP was
actively or passively negligent.
In this case, CAP is alleged to be responsible for starting the fire, while DPL is
alleged to have been negligent and grossly negligent in responding to the fire, further
exacerbating the injury ultimately suffered by Plaintiff. Therefore, DPL and CAP could both
be liable to the Plaintiff for contributing to their respective damage. As such, the predicate
for contribution is present. As discussed above, DPL’s Tariff does not apply to State Auto’s
claims in this case and, therefore, DPL is subject to suit for the negligence claims alleged.
The Crossclaim has sufficiently incorporated the Plaintiff’s arguments and as a result, places
DPL on notice that the claim is plausible. As State Auto’s negligence count survives DPL’s
Motion and as CAP has sufficiently stated a claim for contribution, DPL’s Motion for
Dismissal of CAP’s Crossclaim must be DENIED in part. Accordingly, DPL’s Motion to
Dismiss CAP’s Crossclaim is GRANTED IN PART and DENIED IN PART.
For the reasons stated above, DPL’s Motion to Dismiss State Auto’s Amended
Complaint (ECF No. 25) is DENIED. DPL’s Motion to Dismiss CAP’s Crossclaim (ECF
No. 42) is GRANTED IN PART and DENIED IN PART. Specifically, it is GRANTED as
to CAP’s indemnity claim, which is dismissed, and it is DENIED as to CAP’s contribution
claim, which remains pending.
A separate Order follows.
July 20, 2017
Richard D. Bennett
United States District Judge
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