Begley v. Windsor Willits Company et al
Filing
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ORDER denying 60 Motion for Leave to File a third party complaint. So Ordered by Chief Judge Landya B. McCafferty.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Brian Begley
v.
Civil No. 17-cv-317-LM
Opinion No. 2019 DNH 191
Windsor Surry Company et al.
O R D E R
Plaintiff Brian Begley brings this action individually and
on behalf of a putative class of New Hampshire consumers against
defendants Windsor Surry Company d/b/a WindsorONE and Windsor
Willits Company d/b/a Windsor Mill (collectively “Windsor”).
Begley asserts claims against Windsor arising from allegedly
defective wood trim products that Windsor manufactures and
sells, which Begley used in constructing his home.
Windsor
requests leave to file a third-party complaint against Nehemiah
Builders, Inc. and its owner Paul Vandenberg, who installed
Windsor’s wood trim product onto Begley’s home.
Begley objects.
Doc. no. 60.
On November 1, 2019, the court heard oral
argument on the motion.
For the following reasons, Windsor’s
motion for leave to file a third-party complaint is denied.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 14(a), a defendant
may bring a third-party complaint against a nonparty “who is or
may be liable to it for all or part of the claim against it.”
Fed. R. Civ. P. 14(a)(1).
Where, as here, a defendant seeks to
file the third-party complaint more than 14 days after filing
its answer, it must obtain the court’s permission.
P. 14(a).
Fed. R. Civ.
The decision whether to grant leave “is left to the
informed decision of the district court, which should allow
impleader on any colorable claim of derivative liability that
will not unduly delay or otherwise prejudice the ongoing
proceedings.”
Lehman v. Revolution Portfolio L.L.C., 166 F.3d
389, 393 (1st Cir. 1999).
“A third-party claim may be asserted under Rule 14(a)(1)
only when the third party’s liability is in some way dependent
on the outcome of the main claim or when the third party is
secondarily liable to the defending party.”
Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice &
Procedure
§ 1446 (3d ed. 2010) (footnotes omitted); see also
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 376 (1978)
(“A third-party complaint depends at least in part upon the
resolution of the primary lawsuit.
Its relation to the original
complaint is thus not mere factual similarity but logical
dependence.”).
To meet this standard, a defendant must show
that, if it were found liable to the plaintiff, it “has a right
under substantive law to transfer its liability derived from the
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original complaint to the third-party defendant.”
Zurich Am.
Ins. v. Lord Elec. Co. of Puerto Rico, 828 F. Supp. 2d 462, 468
(D.P.R. 2011) (internal quotation marks and brackets omitted).
It is the defendant’s burden to show that impleader is proper
under Rule 14.
See Leasetec Corp. By & Through Leasetec Sys.
Credit v. Inhabitants of Cty. of Cumberland By & Through
Cumberland Cty. Registry of Deeds, 896 F. Supp. 35, 40 (D. Me.
1995).
Rule 14(a) does not permit a defendant to implead “a
separate and independent claim even though the claim arises out
of the same general set of facts as the main claim.”
Davis v.
Prot. One Alarm Monitoring, Inc., No. CIV.A. 03-40195-FDS, 2005
WL 3728711, at *6 (D. Mass. Nov. 2, 2005) (internal quotation
marks omitted).
Nor may a defendant implead a third party
“merely because [the third party] may be liable to the
plaintiff.”
Owen, 437 U.S. at 368 n.3; see also Zurich, 828 F.
Supp. 2d at 468.
BACKGROUND
Windsor manufactures the WindsorONE line of pre-primed wood
trim board products.
It markets and sells this line of trim
board products for interior and exterior use on buildings and
other structures.
In advertisements, Windsor represented to
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consumers that the trim board product is “defect free,”
“waterproof,” and that it provides “durability and long term
performance.”
Doc. no. 17 at ¶ 188.
In 2004, Begley began constructing a home in Wilmot, New
Hampshire.
He hired Paul Vandenberg, the owner of Nehemiah
Builders, Inc., to build the home.
Begley authorized Vandenberg
to purchase WindsorONE trim board through a local distributor
and use it on 9,712 linear feet of exterior surfaces of the
home.
Vandenberg completed construction in 2005.
In 2007 and
2008, Begley noticed that about 384 linear feet of the trim
board was rotting, deteriorating, splitting, warping, and/or
growing fungus.
Begley filed a warranty claim with Windsor and
received credit to purchase 400 linear feet of trim board in
exchange for executing a release of liability.
He used the
credit to purchase trim board from another company and had
Vandenberg replace and repair the rotted trim board.
In 2015, Begley noticed that the rotting and deterioration
of the WindsorONE trim board had spread to new areas, totaling
2,125 linear feet of trim board.
claim with Windsor.
Begley filed a second warranty
Windsor responded by again offering a
credit with a value of the cost of 400 linear feet of WindsorONE
trim board in exchange for Begley’s execution of another release
of liability.
Begley declined this offer.
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In 2017, Begley filed this action on his own behalf and on
behalf of a putative class of New Hampshire consumers who own
structures with WindsorONE trim board.
The following claims
asserted in Begley’s amended complaint remain: (1) breach of
express warranty (count two); (2) negligence (count four); and
(3) a request for declaratory and injunctive relief (count
five).
See doc. no. 41 at 8 n.2, 36 (dismissing Begley’s
implied warranty claim and noting that Begley had “withdrawn”
his New Hampshire Consumer Protection Act claim).
DISCUSSION
Windsor requests leave of court to file a third-party claim
under Rule 14 against Nehemiah Builders, Inc. and Vandenberg
(collectively “Vandenberg”).
The proposed third-party complaint
alleges that “any of the damage purportedly suffered by Begley”
was the result of Vandenberg’s negligence in failing to
“properly follow installation instructions and directions and
properly construct Begley’s home.”
Doc. no. 60-2 at 3.
Consequently, Windsor claims that, to the extent it is found
liable to Begley, Vandenberg is liable to it under theories of
common-law indemnification and contribution.
As explained
above, to show that these third-party claims are proper under
Rule 14(a), Windsor must show that—if it is found liable to
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Begley—it will be able to shift or transfer that liability (or a
portion thereof) to Vandenberg under New Hampshire law.
See
Owen, 437 U.S. at 376; Zurich, 828 F. Supp. 2d at 468.
Windsor has failed, however, to articulate a legal theory
which allows it to hoist derivative liability onto Vandenberg.
The gravamen of Begley’s remaining claims is that Windsor
defectively designed the trim board product.
For example, count
four of the amended complaint (negligence) alleges that Windsor
owed Begley a duty of care to design, manufacture, market, and
sell a non-defective trim board product and that it breached
that duty by manufacturing a defective trim board.
Count two
(breach of express warranty) alleges that Windsor breached its
express warranty that the trim board was suitable for exterior
use by providing a defective product that prematurely rots and
deteriorates when installed on the exterior of structures.
Likewise, count five (request for declaratory and injunctive
relief) also relies on Begley’s assertion that Windsor
defectively designed and manufactured the trim board.
Products liability is the “legal theory by which liability
is imposed on the manufacturer or seller of a defective
product.”
Black’s Law Dictionary 1462 (11th ed. 2019).
Products liability actions may be premised on a variety of legal
theories, including negligence, strict liability, and breach of
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warranty.
See id.; 8 Richard B. McNamara, N.H. Practice:
Personal Injury—Tort and Insurance Practice § 8.02 (4th ed.
2015); see also Pigulski v. Johnson & Johnson, Inc., No. 18-CV1061-LM, 2019 WL 2582540, at *3 (D.N.H. June 24, 2019)(refusing
to dismiss negligence claims as duplicative of strict liability
claims for defective design and failure to warn).1
In sum, all
of Begley’s remaining claims sound in a “design defect” theory
of products liability.
By contrast, the theory underlying Windsor’s third-party
claims of indemnification and contribution is that Vandenberg
negligently installed the trim board and negligently constructed
the house.
Windsor has failed to articulate a viable legal
theory for transferring its liability for defective design of
the trim board to third parties who did not participate in the
design or manufacture of the product but who, instead, merely
installed the product.
Indeed, Windsor conceded at the hearing
that, if a jury concluded that Begley’s damages were caused by a
design defect in the trim board, then Windsor would have no
There was much discussion at the hearing about whether
count four alleges a products liability claim or a negligence
claim. As explained above, those two classifications are not
mutually exclusive. Nevertheless, Begley made clear at the
hearing that he is pursuing a products liability theory of
recovery and that, to the extent the amended complaint could be
read to allege a more “general” negligence claim, he waives that
claim.
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claim against Vandenberg because he did not participate in the
design of the trim board.2
Under these circumstances, the court
cannot find that impleading Vandenberg is proper under Rule 14.
Additionally, permitting impleader would prejudice Begley.
Begley represented, and the court agrees, that allowing the
third-party claim would expand the scope of discovery and
introduce substantial delays.
Specifically, the parties would
need to discover additional details about Vandenberg’s
installation of the trim board and the instructions for
installation, and Begley would likely need to retain an expert
on construction and installation of trim.
See Riccitelli v.
Water Pik Techs., Inc., 203 F.R.D. 62, 65-66 (D.N.H. 2001)
(denying motion to implead in part due to potential for undue
delay and prejudice to plaintiff caused by need for additional
discovery and third-party motion practice).
Notably, Windsor is not alleging that Vandenberg’s
negligence somehow contributed to or enhanced the damage to
Begley’s home. That is, Windsor is not pursuing a jointtortfeasor theory of liability. Rather, Windsor’s third-party
complaint attempts to shift all its potential liability onto
Vandenberg through a contribution or indemnification theory.
Windsor cites no legal support for this theory of derivative
liability.
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CONCLUSION
For the foregoing reasons, Windsor’s motion for leave to
file a third-party complaint (doc. no. 60) is denied.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
November 18, 2019
cc:
Counsel of Record.
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