Watson et al v. Sunbelt Rentals, Inc. et al

Filing 26

CASE MANAGEMENT ORDER NO. 1. Signed by District Judge Aleta A. Trauger on 5/3/13. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
_________________________________________________________________________
EDDIE K. WATSON, ADMINISTRATOR
)
OF THE ESTATE OF KATHRYN WATSON,
)
deceased, C.M.O. and J.K.O., minor children
)
and next of kin of KATHRYN OVER, deceased,
)
by their Co-Guardians and next friends,
)
EDDIE K. WATSON and CHRISTINE WATSON, and )
EDDIE K. WATSON and CHRISTINE WATSON,
)
individually,
)
)
Plaintiffs,
)
)
vs.
)
)
SUNBELT RENTALS, INC. and
)
MULTIQUIP INC.,
)
)
Defendants.
)

Case No. 3:13-cv-00195
JURY TRIAL DEMAND
TRAUGER/GRIFFIN

___________________________________________________________________________
CASE MANAGEMENT ORDER NO. 1
___________________________________________________________________________
A.

JURISDICTION
The parties agree that subject matter jurisdiction exists under diversity of

citizenship, 28 U.S.C. § 1332. The parties also agree that this Court has personal
jurisdiction over both Defendants.
B.

PARTIES’ THEORIES OF THE CASE
1.

Plaintiffs’ Theory of the Case

This case arises out of the death of Kathryn “Katy” Over on September 18, 2011
from carbon monoxide poisoning. The source of the carbon monoxide was a portable

generator rented from Defendant Sunbelt Rentals, Inc. (“Sunbelt”) and manufactured
and/or distributed by Defendant Multiquip Inc. (“Multiquip”).

Even though a

warning decal affixed to the generator stated that “To avoid injury, you MUST read
and understand owner’s manual before using machine” no owner’s, operator’s or
other manual was furnished by Sunbelt with the generator when the generator was
rented. Moreover, no instructions were given by or on behalf of Sunbelt on the safe
use of the generator. The generator was not properly maintained. The generator
was defective and unreasonably dangerous, and the warning decals affixed to the
generator did not adequately warn of the dangers associated with using the
generator or adequately instruct foreseeable users on how to use the generator
safely.
As a result of Katy Over’s death, Plaintiffs have sustained damages. Among
those damages is the loss of consortium experienced by C.M.O. and J.K.O., Katy
Over’s twin two-year old sons, as a result of their mother’s death. The twins’ father
was killed in the same incident as their mother.
2.

Defendant’s Theory of the Case
Sunbelt Rentals, Inc.

Sunbelt Rentals, Inc., denies that any act or omission of Sunbelt constitutes
fault which caused or contributed to cause the accident and injuries alleged by
plaintiffs. Sunbelt alleges that if the plaintiffs’ allegations that the generator was
defective or unreasonably dangerous, by design or manufacture, including, but not
limited to labeling, are proven true, then that may constitute sole fault or
comparative fault as to Denyo, and/or Multiquip, in mitigation or bar of any recovery

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against Sunbelt. Sunbelt alleges that if the plaintiffs’ allegations as to a not working
carbon monoxide detector in the camper trailer are proven true, then that may
constitute sole fault or comparative fault as to Gear-to-Go (the United States of
America) in mitigation or bar of any recovery against Sunbelt. Sunbelt alleges sole
fault or comparative fault as to those using, placing, or renting the camper trailer,
and/or the generator.

Sunbelt pleads the applicable provisions of the rental

agreement for the generator in mitigation or bar of the claims against it. Finally,
Sunbelt denies that the plaintiffs have stated a claim against it for punitive damages.
Multiquip, Inc.
Plaintiffs’ wrongful death claims arise out of the deaths of the occupants of a
recreational camper trailer who died as a result of carbon monoxide toxicity. The
occupants were sharing a camper trailer that had been rented from Gear-to-Go, an
agency of the United States. Plaintiffs allege that the camper trailer did not have a
functioning carbon monoxide detector at the time of the incident. The occupants
were also using a gasoline powered generator in close proximity to an open hatch or
compartment on the camper trailer, contrary to the labeling and warnings affixed to
the generator. The generator had been rented from Sunbelt. Sunbelt had previously
purchased the generator from Multiquip. Multiquip sold, but did not manufacture,
the subject generator.
As more fully set for the in Multiquip’s answers, Multiquip denies Plaintiffs’
claims against Multiquip, and denies that it is otherwise liable to the Plaintiffs.
Multiquip asserts the acts or omissions of others over whom Multiquip had no control
caused or contributed to cause plaintiffs’ alleged damages, including but not limited
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to the acts or omissions of said parties relating to the use of the generator in close
proximity to the camper trailer and the inoperable carbon monoxide detector, which
bars or reduces Plaintiffs’ claims, and the fault of said parties should be compared
under applicable Tennessee law.
C.

TARGET TRIAL DATE AND EXPECTED LENGTH OF TRIAL
The parties agree that at this time it is too early to project a trial date.

Plaintiffs plan to file a lawsuit against the United States under the Federal Tort
Claims Act (“FTCA”) in connection with the absence of a functioning carbon
monoxide alarm/detector in the camper/RV occupied by Katy Over at the time of her
death. Plaintiffs expect to request that their FTCA lawsuit be consolidated with this
case. Further, Plaintiffs may add Denyo Co., Ltd. as a Defendant in this case since
Sunbelt has identified Denyo Co., Ltd. as a non-party whose actions may constitute
fault.
D.

IDENTIFICATION OF ISSUES RESOLVED/DISPUTED
1.

Issues Resolved

The parties agree that this Court has jurisdiction over the subject matter of
this action and over the parties. The parties further agree that venue lies with this
Court and that both Defendants have been properly served with process. The parties
also agree that Katy Over died as a result of carbon monoxide poisoning.
2.

Issues in Dispute

All other issues, including liability, causation and the extent of Plaintiffs’
damages, are in dispute.

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E.

COUNTERCLAIMS, CROSS-CLAIMS, THIRD-PARTY CLAIMS
The parties do not anticipate the filing of any Counterclaims, Cross-Claims or

Third-Party Claims.
F.

DISPOSITIVE MOTIONS
The parties anticipate that both Defendants will file dispositive motions. The

parties agree that a deadline for filing dispositive motions should not be set at this
time. Briefs shall not exceed 20 pages. No motion for partial summary judgment
shall be filed except upon leave of Court. Any party wishing to file such a motion
shall first file a separate motion that gives the justification for filing a partial
summary judgment motion in terms of the overall economy of time and expense for
the parties, counsel and the Court.
G.

DISCOVERY
Discovery is not stayed during dispositive motions, unless ordered by the

Court. Local Rule 33.01(b) is expanded to allow 40 interrogatories, including subparts. No motions concerning discovery are to be filed until after the parties have
conferred in good faith and, unable to resolve their differences, have scheduled and
participated in a conference telephone call with the Court.
H.

MANDATORY INITIAL DISCLOSURES
In light of the posture of this case, including the potential addition of

defendants, the parties agree that the initial disclosures required by Fed. R. Civ. P.
26(a)(1) should be made within 14 days of a subsequent Case Management
Conference to be set by the Court on or after August 2, 2013.

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I.

STAY OF DISCOVERY
In light of the posture of this case, as described above, the parties agree that

discovery should be stayed until a second Case Management Conference to be set by
the Court on or after August 2, 2013.
J.

OTHER DEADLINES
The parties agree that no other deadlines should be set at this time.

K.

ALTERNATIVE DISPUTE RESOLUTION
While this may be an appropriate case for alternative dispute resolution, any

mediation or other ADR should not be scheduled until any additional parties are
before the Court.
L.

ADDITIONAL CASE MANAGEMENT CONFERENCES
The parties agree that a further Case Management Conference should be

scheduled on or after August 2, 2013.
M.

OTHER MATTERS
The parties agree that no other matters need to be addressed by the Court at

this time.
May
3rd day of April, 2013.
-------Entered this ____
______________________________
ALETA A. TRAUGER
U.S. District Judge

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APPROVED FOR ENTRY:
s/ Jay R. Slobey
Jay R. Slobey (TN BPR #005398)
JAMES A. FREEMAN & ASSOCIATES, P.C.
2804 Columbine Place
Nashville, TN 37204
Phone: [phone]
Fax: [phone]
[e-mail]
s/ John Norris
John Norris (TN BPR #006007)
NORRIS & NORRIS PLC
424 Church Street
Suite 1300
Nashville, TN 37201-3310
Phone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Plaintiffs

s/ Alan B. Easterly by JLN w/ permission
Alan B. Easterly (TN BPR#013225)
LEITNER, WILLIAMS, DOOLEY & NAPOLITAN PLLC
801 Broad Street, Third Floor
Chattanooga, TN 37402-2621
Phone: [phone]
Fax: [phone]
[e-mail]
James P. Catalano (TN BPR#018585)
LEITNER, WILLIAMS, DOOLEY & NAPOLITAN PLLC
414 Union Street, Suite 1900
Nashville, TN 37219
Phone: [phone]
Fax :
[phone]
[e-mail]
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Rebecca E. Bell (TXBAR#24026795)
FEE, SMITH, SHARP & VITULLO LLP
Three Galleria Tower
13155 Noel Road, Suite 1000
Dallas, TX 75240
[phone] – Phone
[phone] – Fax
[e-mail]
Attorneys for Sunbelt Rentals

s/ Randy P. Scheer by JLN w/ permission
Randy P. Scheer (MOBAR#37214)
S. Jacob Sappington (MOBAR#51810)
Kenneth A. Sprenger (MOBAR#57738)
SANDERS, WARREN & RUSSELL LLP
1949 E. Sunshine, Corporate Ctr. 2-102
Springfield, MO 65840
[phone] –Phone
[phone] – Fax
[e-mail]
[e-mail]
[e-mail]
s/ Michael K. Alston by JLN w/ permission
Michael K. Alston (TNBPR#013697)
HUSCH BLACKWELL LLP
736 Georgia Avenue, Suite 300
Chattanooga, TN 37402
[phone] – Phone
[phone] – Fax
[e-mail]
Attorneys for Multiquip

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