Farmers Insurance Exchange v. TOTO USA, Inc.

Filing 18

ORDER granting 17 Stipulated Motion for Leave to File Amended Complaint. Plaintiff is likewise granted leave to file its Amended Complaint. Signed by Magistrate Judge Peggy A. Leen on 3/23/2018. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:17-cv-02906-APG-PAL Document 17 Filed 03/21/18 Page 1 of 2

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Kenneth W.Maxwell, Esq.
Nevada Bar No. 9389
Paul T. Landis, Esq.
Nevada Bar No. 10651
BAUMAN LOEWE WITT & MAXWELL
3650 North Rancho Drive, Suite 114
Las Vegas, Nevada 89130
Telephone: [phone]
Facsimile:
[phone]
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
FARMERS INSURANCE EXCHANGE,
as subrogee of Doug Ansell,

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Plaintiff,

Case No. 2:17-cv-02906-APG-PAL
STIPULATED MOTION AND
ORDER FOR LEAVE TO FILE
AMENDED COMPLAINT

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vs.

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TOTO USA, INC. a Georgia corporation;
CHRISTOPHER HOMES, LLC, a Nevada
company; DOES I – X, inclusive, and
ROE CORPORATIONS I – X, inclusive

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Defendants.

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Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, as well as the

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Court’s Discovery Plan and Scheduling Order, Plaintiff, FARMERS INSURANCE

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EXCHANGE (“Plaintiff” or “Farmers”), and Defendant, TOTO USA, INC. (“Defendant”)

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(collectively, the “Parties”), by and through their undersigned counsel, respectfully

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submit this Stipulated Motion and Order for Leave to File Amended Complaint.

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In support of the instant Motion, the Parties state as follows:

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Good cause exists to grant this Motion. Among other things, Plaintiff has

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advanced this case by naming an additional defendant in its Amended Complaint, which

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is attached hereto as Exhibit A.

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2.

This Motion is timely pursuant to the Court’s Discovery Plan and

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Scheduling Order, dated January 10, 2018. Per said Order, the “Parties shall have until

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March 22, 2018 to file any motions to amend the pleadings to add parties.” (Dkt. 10).
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3.

The Parties have conferred regarding this Motion, and Defendant

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consents to Plaintiff’s Amended Complaint in the form attached hereto as Exhibit A. As

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such, the Parties stipulate to the entry of Plaintiff’s Amended Complaint.

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WHEREFORE, the Parties jointly request that the Court grant this Motion for

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leave to file Plaintiff’s Amended Complaint, and order that Plaintiff’s Amended

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Complaint be entered on the docket of Case No. 2:17-cv-02906-APG-PAL effective as

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of the date of the Court’s order.

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DATED this 20th day of March, 2018.

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SNELL & WILMER
/s/ Alexandria Layton
By:
Daniel S. Rodman, Esq. (NSBN 8239)
Alexandria Layton, Esq. (NSBN 14228)
3883 Howard Hughes Parkway,
Suite 1100
Las Vegas, NV 89169
Attorneys for Defendant TOTO
USA, Inc.

BAUMAN LOEWE WITT & MAXWELL
/s/ Paul T. Landis
By:
Kenneth W. Maxwell (NSBN 9389)
Paul T. Landis (NSBN 10651)
3650 N. Rancho Drive, Suite 114
Las Vegas, NV 89130
Attorneys for Plaintiff

IT IS ORDERED: The Motion is granted. Plaintiff is likewise granted leave to file
its Amended Complaint.

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_____________________________
UNITED STATES DISTRICT JUDGE
UNITED STATES MAGISTRATE JUDGE

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DATED: this _____of March, 2018

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I I "A"

HI I " "

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Kenneth W.Maxwell, Esq.
Nevada Bar No. 9389
Paul T. Landis, Esq.
Nevada Bar No.1 0651
BAUMAN LOEWE WITT & MAXWELL
3650 North Rancho Drive, Suite 114
Las Vegas, Nevada 89130
Telephone: [phone]
Facsimile:
[phone]
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No. 2:17-cv-02906-APG-PAL

FARMERS INSURANCE EXCHANGE,
as subrogee of Doug Ansell,

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AMENDED COMPLAINT

Plaintiff,

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vs.

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TOTO USA, INC. a Georgia corporation;
CHRISTOPHER HOMES, LLC, a Nevada
company; DOES I - X, inclusive, and
ROE CORPORATIONS I - X, inclusive

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Defendants.

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Plaintiff for its Amended Complaint against Defendants alleges as follows:

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I.

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JURISDICTIONAL ALLEGATIONS

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1. During the period of time relevant to the matters stated herein, FARMER

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INSURANCE EXCHANGE (hereinafter, "Plaintiff") was a foreign insurance compan

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duly authorized to conduct business as an insurance company in the County of Clark,

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State of Nevada.

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2. During the period of time relevant to the matters stated herein, Plaintiff'

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insured, Doug Ansell (hereinafter, "Ansell") was and is an individual who owned

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single-family residence (hereinafter, the "Residence") located at 3059 Red Arrow Dr.,

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Las Vegas, NV 89135, in the County of Clark, State of Nevada.

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3. Defendant TOTO USA, INC. (hereinafter "TOTO") is, and at all times relevan
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to the matters pleaded herein was, a Georgia corporation duly authorized to transac

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business in the County of Clark, State of Nevada.

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4. TOTO caused and/or contributed to a water loss, as described herein, tha
occurred within the County of Clark, State of Nevada, out of which this action arises.
5. Defendant CHRISTOPHER HOMES,

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LLC

(hereinafter "CHRISTOPHE

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HOMES") is, and at all times relevant to the matters pleaded herein was, a Nevad

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corporation and a Nevada contractor duly authorized to transact business in the Count

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of Clark, State of Nevada.

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6. CHRISTOPHER HOMES caused and/or contributed to a water loss, a

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described herein, that occurred within the County of Clark, State of Nevada, out

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which this action arises.

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7. Venue is property in the County of Clark, State of Nevada because this matte

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flows directly from a water loss at the Residence, as described herein, which is located

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in the County of Clark, State of Nevada.

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8. The damages sustained by Plaintiff, as described herein, are $94,842.94.

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II.

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GENERAL ALLEGATIONS

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9. Plaintiff repeats and re-alleges each and every allegation contained
Paragraphs 1 through 8 above as though fully set forth herein.

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10. During the period of time relevant to the matters stated herein, Plaintiff'

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insured, Doug Ansell (hereinafter, "Ansell") was and is an individual who owned

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single-family residence (hereinafter, the "Residence") located at 3059 Red Arrow Dr.,

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Las Vegas, NV 89135, in the County of Clark, State of Nevada.

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11. At all times relevant to this Complaint, Plaintiff provided insurance coverin
losses to its insured Ansell, under a homeowner's policy (the "Policy").

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12. Ansell purchased a faucet (the "Product") manufactured by TOTO.

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13. CHRISTOPHER HOMES and/or its agents, subcontractors, representative

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and/or employees installed the Product and/or performed other work related to and/o
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affecting the Product.

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14. On or about November 8, 2015, the Product failed and caused extensiv
water damage at the Residence (the "Water Loss").

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15. Ansell submitted a claim to Plaintiff for damages arising from the

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damage that took place in the Residence on or about November 8, 2015 ("Loss").

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16. By reason of the foregoing Water Loss, Plaintiff became obligated to pa

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certain sums pursuant to the Policy in the amount of $94,842.94 for the damage to th

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Residence and personal property of Ansell.

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17. Pursuant to the Policy, equity, and law, Plaintiff is subrogated to the rights

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Ansell in the amount of all payments made in response to Ansell's claims for coverag

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under the Policy for the Loss.

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18. On or around March 22, 2017, Plaintiff demanded payment from TOTO fo
the damage its defective Product caused to Ansell's personal property and Residence.

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19. TOTO refused to pay Plaintiff's demand, which resulted in this litigation.

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20. Plaintiff has been required to retain the services of an attorney to prosecut

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this action and the Court should order Defendant to pay a reasonable amount

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attorney's fees together with the costs of suit incurred herein.

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21. Pursuant to NRS 17.130, Plaintiff is entitled to pre-judgment interest from th
date of filing suit.

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III.

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FIRST CAUSE OF ACTION

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(Negligence Products Liability against TOTO)

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22. Plaintiff repeats and re-alleges each and every allegation contained in
paragraphs 1 through 21 above as though fully set forth herein.

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23. TOTO owed a duty to Ansell and all foreseeable users of the Product, t

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exercise reasonable care in its design, manufacture, instructions and warnings of th

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Product such that the materials in the Product would not deteriorate when exposed t

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municipal water resulting in a water loss and/or would not deteriorate as a result
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foreseeable installation methods and/or plumbing work.

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24. TOTO breached its duty of care to Ansell when it negligently and carelessl

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warned, designed, instructed and manufactured the Product with material which

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deteriorated when exposed to municipal water and/or foreseeable installation method

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and/or plumbing work, and resulted in a water loss.

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25. As a direct and proximate result of TOTO's breach of its duties of care, th

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Product was defective and failed when it leaked causing water to flow and damaging th

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Residence and personal property of Ansell.

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IV.

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SECOND CAUSE OF ACTION

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(Strict Products Liability against TOTO)

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26. Plaintiff repeats and re-alleges each and every allegation contained

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paragraphs 1 through 25 above as though fully set forth herein.

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27. The Product was defective in its design and/or manufacturing, and warning

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when it left TOTO's control, making it unreasonably dangerous for the purpose for which

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it was intended.
28. The Product was defective because the acetyl plastic used in th

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manufacture of the Product deteriorated from normal levels of chlorine found in

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municipal water supplies and/or deteriorated as a result of foreseeable installation

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methods and/or plumbing work.

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29. As a direct and proximate result of such defects, water leaked from th

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deteriorated Product causing extensive water damage to Ansell's Residence and

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personal property in excess of $15,000.00.

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V.

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THIRD CAUSE OF ACTION

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(Breach of Express Warranty against TOTO)

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30. Plaintiff repeats and re-alleges each and every allegation contained in
Paragraphs 1 through 29 above as though fully set forth herein.
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31. Ansell and TOTO entered into a contract for the sale of the Product.

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32. Through its advertising materials, sales presentations, models, samples,

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affirmations of fact or promise, discussions, and/or examples TOTO expressl

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warranted that the Product had flawless performance, were lasting and would no

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catastrophically fail and damage other property.

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33. The Product did not conform to the advertising materials, sales presentations,

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models, samples, affirmations of fact or promise, discussions, and/or examples.

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34. TOTO breached said warranty when the acetyl plastic in the

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deteriorated which allowed water to flow from the Product into the Residence.

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35. TOTO's breach was the proximate cause of the loss sustained by Ansell a

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water flowed directly from the leak in the Product and damaged Ansell's Residence and

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personal property.

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VI.

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FOURTH CAUSE OF ACTION

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(Breach of Implied Warranty of Merchantability against TOTO)

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36. Plaintiff repeats and re-alleges each and every allegation contained

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Paragraphs 1 through 35 above as though fully set forth herein.

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37. Ansell and TOTO entered into a contract for the sale of the Product.

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38. At the time of the purchase, TOTO was in the business of selling, distributing,

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and/or manufacturing faucets of the same design, make and model as the Product and

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held itself out as having special knowledge or skill regarding such Products.

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39. The Product was not of fair, average quality, or the same quality as thos

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generally acceptable in the trade, and was not fit for the ordinary purposes for which

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such goods are used.

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40. As a direct and proximate result of such defects, the Product leaked causin
extensive water damage to the Residence and personal property of Ansell.

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VII.

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FIFTH CAUSE OF ACTION

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(Breach of Implied Warranty of Fitness for a Particular Purpose against TOTO)

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41. Plaintiff repeats and re-alleges each and every allegation contained in

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Paragraphs 1 through 40 above as though fully set forth herein.

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42. Ansell and TOTO entered into a contract for the sale of the Product.

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43. At the time of purchase, TOTO knew or had reason to know the purpose fo

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which the Product was being purchased and that Ansell was relying on its skill and

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judgment to select or furnish a product that was suitable for the particular purposes

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Ansell.

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44. Ansell relied on TOTO's skill and/or judgment when deciding to purchase th
Product.

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45. The Product was defective and was not fit for the purposes of Ansell.

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46. As a direct and proximate result of such defects, the Product leaked causin

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extensive water damage to the Residence and personal property of Ansell.

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VIII.

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SIXTH CAUSE OF ACTION

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(Deceptive Trade Practice against TOTO)

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47. Plaintiff repeats and re-alleges each and every allegation contained in
Paragraphs 1 through 46 above as though fully set forth herein.

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48. TOTO represented that the Product was of a particular standard, quality

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grade even though it knew or should have known the Product was of another standard,

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quality or grade.

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IX.

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SEVENTH CAUSE OF ACTION

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(Negligence against Christopher Homes)

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49.

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Paragraphs 1 through 48 above as though fully set forth herein.

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Plaintiff repeats and re-alleges each and every allegation contained In

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Christopher Homes owed plaintiff's insured a duty of care to properl

supervise, inspect, construct, maintain, install or otherwise perform work at th

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Residence related to the installation of the Product and/or the plumbing at th
Residence.
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Christopher Homes breached its duty of care by failing to properly conduc

the work and/or supervise the work related to installation of the Product and/or th
plumbing at the Residence.

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52.

Christopher Homes' negligence caused the Water Loss.

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As a directed proximate consequence of Christopher Homes' negligence,

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the Water Loss caused extensive water damage to the Residence and persona
property of Ansell.

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X.

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EIGHTH CAUSE OF ACTION

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(Negligent Hiring and Supervision against Christopher Homes)

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54.

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Paragraphs 1 through 53 above as though fully set forth herein.

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Plaintiff repeats and re-alleges each and every allegation contained

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Christopher Homes had a duty to properly evaluate the qualifications and

conduct appropriate background checks on its employees and/or agents before hirin

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them.
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56.

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Christopher Homes had a duty to properly supervise, monitor, and

otherwise instruct its employees and/or agents.

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57.

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Christopher Homes failed to fulfill its duties in this regard, thereb

breaching its duty to any potential plaintiff and/or third-party, specifically Christophe
Homes' breached its duty of care to the Plaintiff's insured.

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Christopher Homes' negligence caused the Water Loss.

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As a direct proximate consequence of Christopher Homes' negligence, th

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Water Loss caused extensive water damage to the Residence and personal property

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Ansell.

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XI.

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NINTH CAUSE OF ACTION

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(Negligence Per Se against Christopher Homes)

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60.

Plaintiff repeats and re-alleges each and every allegation contained in

Paragraphs 1 through 59 above as though fully set forth herein.

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61.

Christopher Homes, its employees, and/or its agents installed or caused th

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Product and/or plumbing and/or plumbing components at the Residence to be installed
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in violation of statutes, building codes and/or applicable regulations.
62.

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Christopher Homes was required by statute, code and/or regulation

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properly install the Product and/or plumbing and plumbing components at th

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Residence.

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63.

Plaintiff's insured is within the class of persons intended to be protected b

the statutes, building codes and/or regulations.

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64.

Damage caused by the Water Loss is the type of injury that the above

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referenced statutes, codes and/or regulations were intended to prevent.
65.

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Christopher Homes and/or its agents and/or its employees failed to properl

install the Product and/or plumbing and/or plumbing components at the Residence.
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66.

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If Christopher Homes and/or its employees and/or its agents had properl

installed the Product and/or plumbing and/or plumbing components at the Residence i
compliance with the building codes and/or applicable statutes and/or regulations, the
the Water Loss would not have occurred.

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67.

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As a direct and proximate consequence of the Christopher Homes' failure t

properly install the Product and/or plumbing and/or plumbing components at th

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Residence as required by the building codes and/or statutes and/or regulations ther

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was extensive water damage to the Residence and personal property of Ansell.

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XII.

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NINTH CAUSE OF ACTION

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(Breach of ContractlWarranty against Christopher Homes)

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68.

Plaintiff repeats and re-alleges each and every allegation contained

Paragraphs 1 through 67 above as though fully set forth herein.

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69.

Christopher Homes contracted expressly and/or orally, with Plaintiff'

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insured to properly install the Product and/or plumbing and all associated component
in a workmanlike manner and in conformance with applicable codes, statutes,
regulations and industry standards.

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70.

Plaintiff's insured performed all conditions precedent and/or all condition

precedent have occurred.

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71.

All contracts at issue contained the implied covenant of good faith and fai

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dealing pursuant to which Christopher Homes agreed to provide Plaintiff's insured with

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the benefit of properly functioning plumbing.
72.

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In addition, Christopher Homes expressly and/or impliedly warranted tha

the Product and plumbing work and all associated components would be installed
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properly and in conformance with all applicable codes, statutes, regulations and indust

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standards.

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73.

The Product and/or other plumbing and/or plumbing components were no

properly installed in that Christopher Homes' work caused the Water Loss in breach

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contract and warranty.
74.

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Christopher Homes' breach of contract and warranty.

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The damage from the Water Loss was a foreseeable consequence

75.

As a direct and proximate consequence of these contract and warrant

breaches, Christopher Homes caused the Water Loss and extensive water damage t
the Residence and personal property of Ansell.

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XIII.

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NINTH CAUSE OF ACTION

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(Res Ipsa Loquitur against Christopher Homes)

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76.

Plaintiff repeats and re-alleges each and every allegation contained

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Paragraphs 1 through 75 above as though fully set forth herein.
77.

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During installation of the Product and/or plumbing and/or plumbing

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components, the Product and/or other plumbing and plumbing components and al

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related parts were in the possession of and under the exclusive control of Christophe

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Homes and/or its employees and/or its agents.

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78.

Plaintiff's insured made no changes or alterations to the Product or othe

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plumbing or plumbing components after they were installed by Christopher Homes.

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79.

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Water loss from plumbing does not occur in the ordinary course of events i

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those who have control over installation of the plumbing and its components tha

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caused such water loss use ordinary care when installing them.
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80.

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The circumstances surrounding the cause of the Water Loss were such tha

Plaintiff's insured may not be in a position to know the specific conduct that caused th
Water Loss.

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81.

Plaintiff's insured did not cause the Water Loss nor caused the Produc

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andlor other plumbing andlor plumbing components to fail.

82.

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The negligence of Christopher Homes caused the Product andlor othe

plumbing and plumbing components to fail thereby causing the Water Loss.

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83. As a direct and proximate consequence of the negligence of Christophe

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Homes, Christopher Homes caused the Water Loss and extensive water damage to th

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Residence and personal property of Ansell.

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IX.

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PRAYER FOR RELIEF

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WHEREFORE, Plaintiff respectfully requests judgment against Defendants a
follows:

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1.

Damages in an amount to be proved at trial;

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2.

Pre-judgment interest at the prevailing statutory rate;

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3.

Post-judgment interest at the prevailing statutory rate;

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4.

Attorney fees as allowed by law;

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5.

Costs of this action; and

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6.

Any additional or further relief that this Court deems necessary under the

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circumstances.

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III

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III

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III

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III

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III
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Dated this 21 st day of March, 2018.

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BAUMAN LOEWE WITT & MAXWELL, P.L.L.C.

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/s/ Paul T. Landis

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By:
KENNETH W. MAXWELL, ESQ.
Nevada Bar No. 9389
PAUL T. LANDIS, ESQ.
Nevada Bar No. 10651
3650 N. Rancho Dr., Suite 114
Las Vegas, NV 89130

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