Midwest Coatings Inc v. Sherwin-Williams Company The et al
ORDER granting in part and denying in part 23 Sherwin-Williamss Motion to Dismiss. The manufacturers products liability and negligence claims asserted against Sherwin-Williams are hereby dismissed without prejudice. Midwest is granted leave to further amend its Complaint within 14 days of the date of this Order. Absent any such amendment, the sole claim remaining against Sherwin-Williams is for breach of warranty. Signed by Honorable Timothy D. DeGiusti on 1/26/17. (ml)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
MIDWEST COATINGS, INC., an
COMPANY, a foreign corporation, and )
CAROLLO ENGINEERS, P.C., a/k/a )
CAROLLO ENGINEERS, INC.,
a foreign corporation,
Case No. CIV-15-1363-D
Before the Court is Defendant The Sherwin-Williams Company’s (“SherwinWilliams”) Motion to Dismiss Plaintiff’s Amended Complaint [Doc. No. 23], filed pursuant
to Fed. R. Civ. P. 12(b)(6). Plaintiff Midwest Coatings, Inc. (“Midwest”) has responded in
opposition [Doc. No. 26], and Sherwin-Williams has replied [Doc. No. 27]. The Motion is
fully briefed and at issue.
Midwest brings this manufacturer’s products liability suit, alleging1 the “Tank Clad
HS” coating system sold by Sherwin-Williams and applied to clarifiers at the Project2
In its Response, Midwest contends that the facts alleged in its Amended Complaint “support
several viable theories of recovery against Sherwin-Williams, including breach of contract.” Resp. [Doc.
No. 26] at 5; see also id. at 5 n.1; Exs. 1 and 2 [Doc. Nos. 26-1 and 26-2]. However, a claim for breach of
contract is not evident within the four-corners of the Amended Complaint, and therefore, will not be
addressed herein. See Ashcroft v. Iqbal, 556 U.S. 662, 674 (2009).
The subject project is the Norman Water Treatment Plant Expansion Project, Phase I – Owner’s
Project No. 7886A (the “Project”). See Am. Compl. [Doc. No. 21] at 2.
blistered, necessitating “repairs to the coating on Clarifier #3 and Clarifier #4.” Am. Compl.
[Doc. No. 21] at 3. Midwest further alleges Sherwin-Williams was negligent in failing “to
furnish materials which conformed to the Project plans and specifications and/or were
otherwise fit for their intended purpose,” and that such negligence was the proximate cause
of Midwest’s damages. Id. Lastly, Midwest alleges that, by failing to provide “materials
which complied with Project specifications,” Sherwin-Williams breached express and
implied “duties” owed to Midwest.3 Id. Midwest claims damages in excess of $75,000, and
requests interest, costs, and attorney’s fees.
Sherwin-Williams moves to dismiss claims against it, asserting: (1) the economic loss
doctrine bars recovery in tort and requires dismissal of the manufacturer’s products liability
and negligence claims;4 and (2) Midwest is not entitled to attorney’s fees because no
Oklahoma statute authorizes such relief to the prevailing party in a manufacturer’s liability
Standard of Decision
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft, 556 U.S.
Sherwin-Williams construes the breach of “duties” language in the Amended Complaint as part
of Midwest’s negligence claim. See Mot. [Doc. No. 23] at 2 n.1. The Court declines such reading, and
finds the facts alleged are sufficient to give Sherwin-Williams fair notice of the breach of warranty claim
and the grounds upon which it rests. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); see also Khalik v.
United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (noting that although “the elements of each
alleged cause of action help to determine whether . . . a plausible claim” has been set forth, a plaintiff is
not required to “establish a prima facie case in her complaint”) (citations omitted).
Sherwin-Williams also claims the economic loss doctrine bars recovery for indemnification,
however, Midwest admits that it is not asserting claims for indemnification. See Resp. [Doc. No. 26] at 6.
at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. The
complaint must “‘give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests.’” Erickson, 551 U.S. at 93 (quoting Twombly, 550 U.S. at 555). Where
dismissal is granted for failure to state a claim, the Court should grant leave to amend freely
“if it appears at all possible that the plaintiff can correct the defect.” Triplett v. Leflore Cty.,
Okla., 712 F.2d 444, 446 (10th Cir. 1983).
A. Economic Loss Doctrine
In East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858 (1986), the
United States Supreme Court held that “whether stated in negligence or strict liability, no
products-liability claim lies . . . when the only injury claimed is economic loss.” Id. at 876.
This holding became known as the economic loss doctrine. The Oklahoma Supreme Court,
which adopted the doctrine in Waggoner v. Town & Country Mobile Homes, Inc., 808 P.2d
649 (Okla. 1990), held that “no action lies in manufacturers’ products liability for injury only
to the product itself resulting in purely economic loss.” Id. at 653. The Oklahoma Supreme
Court expounded on the doctrine in Oklahoma Gas & Elec. Co. v. McGraw-Edison Co., 834
P.2d 980 (Okla. 1992), when it held that a plaintiff may not recover in tort for damages
categorized as “consequential harm flowing from” injury to the product itself. Id. at 982.
Sherwin-Williams contends the economic loss doctrine bars Midwest from recovery
because the Amended Complaint fails to allege “any personal injury or damage to property
other than the coating.” Mot. [Doc. No. 23] at 5. Midwest argues that its products liability
and negligence claims should be allowed to proceed under Friesen v. Erb, No. CIV-10-0140C, 2012 WL 1142901, *1 (W.D. Okla. Apr. 5, 2012), which held that “[w]hile Plaintiff’s
damages may be classified as purely economic, they are not damages limited to the product
itself . . . . [T]hey are outside the scope of the limitations set forth in Waggoner and are a
permissible type of damages under Oklahoma law.” Id.5
After careful consideration, the Court finds that the economic loss doctrine is
applicable to the present action. The allegations of damage as set forth in the Amended
Complaint are properly categorized as economic injury to the product and consequential
harm flowing from that injury. Because, “a manufacturer . . . has no duty under either a
negligence or strict products-liability theory to prevent a product from injuring itself,” E.
River S.S. Corp., 476 U.S. at 871, Midwest’s products liability and negligence claims are
hereby dismissed, and Sherwin-Williams’s Motionon this ground is granted.
B. Attorney’s Fees
Sherwin-Williams contends Midwest failed to state a plausible claim for attorney’s
fees. The American Rule provides the “basic point of reference” for an award of attorney’s
In its Response, Midwest asserts “the clarifiers were also damaged by the blistering in the
coating system.” Resp. [Doc. No. 26] at 4. However, because this information is outside the pleadings,
and the Court does not choose to treat Sherwin-Williams’s Motion as one for summary judgment, such
information will not be considered here. See Fed. R. Civ. P. 12(d).
fees: “Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract
provides otherwise.” Baker Botts L.L.P. v. ASARCO LLC, __ U.S. __, 135 S.Ct. 2158, 2161
(2015) (citations omitted). “Because the rule is deeply rooted in the common law,” courts
are not to deviate from it “absent explicit statutory authority.” Id. Relying on Lewis v. Fed.Pac. Ele. Co., 743 P.2d 151 (Okla. 1987) (cert. denied), Sherwin-Williams contends there
are no Oklahoma statutes entitling Midwest to attorney’s fees in a manufacturer’s liability
suit. See Mot. [Doc. No. 23] at 7 (quoting Lewis, 743 P.2d at 152, that “there are no
Oklahoma statutes authorizing attorney fees to the prevailing party in manufacturer’s product
liability actions”) (emphasis omitted).
Sherwin-Williams’s Motion on this issue is denied on two grounds. First, the Motion
is premature. Only a prevailing party is entitled to attorney’s fees; no such determination has
been made in this case. Second, a motion to dismiss is an improper vehicle for the dismissal
of a prayer for relief, which is not part of the cause of action. See Daniels v. Thomas, 225
F.2d 795, 797 (10th Cir. 1955) (“[I]t is well settled that the prayer for relief is [not] part of
the cause of action[.]”); see also 5 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1255 at 508-09 (3d ed. 2004) (noting a “demand for judgment is not
considered part of the claim . . . . [and therefore,] the selection of an improper remedy in the
. . . demand for relief will not be fatal to a party’s pleading if the statement of the claim
indicates the pleader may be entitled to relief of some other type.”); Schoonover v.
Schoonover, 172 F.2d 526, 530 (10th Cir. 1949) (Because “the prayer forms no part of the
cause of action, . . . a pleader will be entitled to the relief made out by the case and stated in
the pleadings, irrespective of what is asked for in the prayer.”); Douglas v. Miller, 864 F.
Supp. 2d 1205, 1220 (W.D. Okla. Mar. 30, 2012) (“[W]hether [punitive] damages are
recoverable is not a proper subject for adjudication in a Rule 12(b)(6) motion, as the prayer
for relief is not a part of the cause of action.”) (citations omitted).
Accordingly, dismissing Midwest’s prayer for relief, which includes a request for the
prevailing party’s attorney’s fees and costs, is inappropriate at this stage of the proceedings.
Therefore, Sherwin-Williams’s Motion to Dismiss [Doc. No. 23] is GRANTED in
part and DENIED in part, as set forth above. The manufacturer’s products liability and
negligence claims asserted against Sherwin-Williams are hereby dismissed without prejudice.
Midwest is granted leave to further amend its Complaint within 14 days of the date of this
Order. Absent any such amendment, the sole claim remaining against Sherwin-Williams is
for breach of warranty.6
IT IS SO ORDERED this 26th day of January, 2017.
“Damage to a product itself is most naturally understood as a warranty claim,” because “[t]he
maintenance of product value and quality is precisely the purpose of express and implied warranties.
Therefore, a claim of a nonworking product can be brought as a breach-of-warranty action.” E. River S.S.
Corp., 476 U.S. at 872.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?