Liberty Mutual Fire Insurance Co. et al v. General Electric Company et al
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motions of plaintiff Liberty Mutual Fire Insurance Co. and third-party defendant Town & Country Grocers to dismiss the original third-party complaint [Docs. ## 39 , 56 ] are granted. IT IS FURTH ER ORDERED that the motion of defendant General Electric Company motion for leave to file an amended third-party complaint [Doc. # 50 ] is moot. A separate order of partial dismissal will be entered this same date.. Signed by District Judge Carol E. Jackson on 3/22/16. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LIBERTY MUTUAL INSURANCE CO.,
GENERAL ELECTRIC CO.
and COOPER LIGHTING, LLC,
Case No. 4:15-CV-976-CEJ
MEMORANDUM AND ORDER
This matter is before the Court on defendant General Electric Company’s
motion for leave to file an amended third-party complaint against Town & Country
Grocers of Fredericktown, Missouri, Inc.
Also before the Court are plaintiff and Town
& Country’s motions to dismiss the original third-party complaint, pursuant to Fed. R.
Civ. P. 12(b)(6).
The issues are fully briefed.
On July 27, 2012, a fire occurred at Town & Country Grocers.
At the time of
the fire, Town & Country was insured by plaintiff Liberty Mutual Fire Insurance
After plaintiff paid the claim, it brought this action against defendants
under a theory of subrogation.
Later, Town & Country assigned to plaintiff its right to
pursue recovery against any third party related to the fire.
The complaint was then
amended to reflect the assignment.
In the amended complaint, plaintiff alleges that the fire was caused by
defective metal-halide light bulbs manufactured by defendant General Electric
Company or the fixtures designed to house the bulbs manufactured by defendant
Cooper Lighting, LLC.
The plaintiff asserts claims of strict products liability,
negligence, and breach of warranty against both defendants.
In its answer to the amended complaint, GE asserted the affirmative defense of
comparative fault based on the allegation that Town & Country was negligent in using
and installing the bulbs.
GE subsequently filed a third-party complaint against Town
& Country, which it now seeks leave to amend.
The sole basis for the original and
amended third-party complaints is GE’s allegation that Town & Country negligently
caused or contributed to the fire.
GE seeks contribution from Town & Country in
proportion to the latter’s negligence.
It is undisputed that Missouri law applies in this
action, and that Town & Country cannot be liable to plaintiff because it is plaintiff’s
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal
sufficiency of the complaint.
Fed. R. Civ. P. 12(b)(6).
The factual allegations of a
complaint are assumed true and construed in favor of the plaintiff, “even if it strikes a
savvy judge that actual proof of those facts is improbable.”
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule 12(b)(6)
does not countenance . . . dismissals based on a judge’s disbelief of a complaint’s
factual allegations.”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (stating that a
well-pleaded complaint may proceed even if it appears “that a recovery is very remote
The issue is not whether the plaintiff will ultimately prevail, but
whether the plaintiff is entitled to present evidence in support of his claim.
416 U.S. at 236.
A viable complaint must include “enough facts to state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see id. at 563 (stating
that the “no set of facts” language in Conley v. Gibson, 355 U.S. 41, 45–46 (1957),
“has earned its retirement”); see also Ashcroft v. Iqbal, 556 U.S. 662, 678–84 (2009)
(holding that the pleading standard set forth in Twombly applies to all civil actions).
“Factual allegations must be enough to raise a right to relief above the speculative
Twombly, 550 U.S. at 555.
Missouri applies “comparative fault” to negligence and products liability
Coomer v. Kan. City Royals Baseball Corp., 437 S.W.3d 184, 191 (Mo.
2014) (en banc) (citing Gustafson v. Benda, 661 S.W.2d 11 (Mo. 1983) (en banc));
Gramex Corp. v. Green Supply, Inc., 89 S.W.3d 432, 438–41 (Mo. 2002) (en banc).
A “[d]efendant may plead and prove the fault of the plaintiff as an affirmative
Gramex Corp., 89 S.W.3d at 441 (quoting Mo. Rev. Stat. § 537.765.2).
Here, GE pled comparative fault as an affirmative defense, and Town & Country’s
recovery would be reduced by its degree of fault for the fire.
An assignee “steps into
the shoes of the assignor” and has the “rights or interests” the “assignor had at the
time the assignment was made.”
Renaissance Leasing, LLC v. Vermeer Mfg. Co., 322
S.W.3d 112, 128 (Mo. 2010) (en banc) (citations omitted).
recovery, if any, will be reduced by Town & Country’s degree of fault for the fire.
“When two or more persons become liable in tort to the same person for the
same harm, there is a right of contribution among them.”
at 442 (quotation marks and citation omitted).
Gramex Corp., 89 S.W.3d
However, “[t]o maintain an action for
contribution, both the party seeking contribution and the defendant against whom
contribution is sought must be . . . tortfeasors, originally liable to the plaintiff-injured
Id. (quotation marks and citation omitted).
cause of action for indemnity.
The same principles apply to a
See State ex rel. Baldwin v. Gaertner, 613 S.W.2d
638, 640–41 (Mo. 1981) (en banc).
It is undisputed Town & Country was the injured party.
Thus, it cannot be
liable to itself and cannot be liable for contribution to GE as a joint tortfeasor against
Nor is there any basis under which Town & Country would be required to
indemnify GE for GE’s liability to Town & Country.
Those principles apply to bar GE’s
contribution and indemnity claims against Town & Country in this action because
plaintiff stands in Town & Country’s shoes as its assignee.
Rather, GE is simply
entitled to a reduction of plaintiff’s recovery, if any, in proportion to Town & Country’s
comparative degree of fault, if any.
Because GE has no valid third-party claim for contribution or indemnity against
Town & Country, the original third-party complaint will be dismissed with prejudice.
GE’s motion for leave to file amend is moot.
IT IS HEREBY ORDERED that the motions of plaintiff Liberty Mutual Fire
Insurance Co. and third-party defendant Town & Country Grocers to dismiss the
original third-party complaint [Docs. ##39, 56] are granted.
IT IS FURTHER ORDERED that the motion of defendant General Electric
Company motion for leave to file an amended third-party complaint [Doc. #50] is
A separate order of partial dismissal will be entered this same date.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of March, 2016.
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