Peerless Insurance Company, et al v. Lennox International Inc., et al

Filing 33

ORDER denying 23 Motion to Dismiss. So Ordered by Magistrate Judge James R. Muirhead. (kad)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Peerless Insurance Company, et al v. The Lennox Industries, Inc. Warren Technology, Inc., and USI-Ultra Services, Inc. Civil No. 09-cv-121-JM

ORDER

Defendant Lennox Industries, Inc. moves to dismiss or stay proceedings. Plaintiffs object.

Facts On December 11, 2003, an office building in Bedford, New Hampshire, was destroyed by fire. Plaintiffs paid property

damage claims of the owner and tenants and were subrogated to their rights against any party which caused the fire. Three

potential sources of the fire were identified: a NuTone fan; two Lennox furnaces; and a Warren Technologies duct heater installed by USI-Ultra. Plaintiffs sued NuTone. See Peerless Insurance

Company, et. al v. Braun-NuTone, LLC, Docket No. 1:08-cv-81-PB. During discovery, NuTone has implied that the source of the

fire was either the furnaces or the duct heater.

Four months

after its expert disclosure deadline, NuTone has not disclosed any expert reports to support its deposition implications of fault. Assuming appropriately that NuTone's counsel would not

controvert the liability issue without a basis, plaintiffs' counsel relied on the interrogatory implications to bring this suit. See N.H. Rules of Professional Conduct Rule 3.1.

Discussion Whether or not NuTone is able to disclose its experts so late has not been decided. At this juncture, I must assume that Even if

Nutone has a basis for pointing its finger at Lennox.

NuTone were not permitted to use tardily disclosed experts, that presumed evidence could be used against defendants in this case. There simply is no basis to dismiss this case on the motion and I have already denied the request to stay. Defendant is free to file contention interrogatories on NuTone and move for summary judgment if neither plaintiffs or NuTone have any evidence of its fault. The present motion is not

an appropriate vehicle to consider dismissal. The motion (document no. 23) is denied.

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SO ORDERED. ____________________________________ James R. Muirhead United States Magistrate Judge Date: June 17, 2009 cc: Andrew D. Dunn, Esq. Gordon A. Rehnborg, Jr., Esq. Mary Ann Dempsey, Esq. David W. Johnston, Esq. Lee Stephen MacPhee, Esq. Frank W. Beckstein, III, Esq.

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