Pratt et al v. Cavagna North America et al
Filing
53
MEMORANDUM DECISION granting 41 Motion for Summary Judgment. Signed by Judge Dee Benson on 11/19/13. (jlw)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
ROBERT PRATT and LORI PRATT,
Plaintiffs,
MEMORANDUM DECISION
AND ORDER
vs.
Case No. 2:13-CV-107
CAVAGNA NORTH AMERICA, INC.,
AMERIGAS PROPANE, L.P.,
WORTHINGTON CYLINDER
CORPORATION, and JOHN DOES 1
through 10,
Judge Dee Benson
Defendants.
This matter is before the court on defendant AmeriGas Propane, L.P.’s motion for
summary judgment. (Dkt. No. 41.) On November 1, 2013, the court heard oral argument on the
motion. Plaintiffs Robert and Lori Pratt were represented by Jeff Sbaih. Defendant AmeriGas
Propane, L.P. was represented by Joshua Lee and James Tracy. Prior to the hearing, the court
considered the memoranda and other materials submitted by the parties. Since taking the matter
under advisement, the court has further considered the law and facts relating to the motion. Now
being fully advised, the court issues the following Memorandum Decision and Order.
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BACKGROUND
In this products liability action, plaintiffs’ allege that on July 18, 2010, their home
suffered fire-related damage when leaking propane from their barbeque grill caught fire and
spread to their house. Shortly after the fire, on August 27, 2010, plaintiffs’ consultant, Larry
Thatcher, submitted an “Origin and Cause Report” opining about the cause of the fire and
concluding as follows:
Propane vapor leaked through the Type-1 connection because of the irregular
shape of the sealing rubber in the service valve. The vapor mixed with air and
was ignited by the operating BBQ burner. The fire flashed back to the leak which
was at the Type-1 on connection at the top of the propane cylinder. Heat from the
fire melted out the pressure relief valve poppet which allowed a large torch flame
to impinge on the house.
(Def.’s Mem. in Support, Ex. 3.)
The propane cylinder in question had a label displaying the word “AmeriGas” in large
lettering. The label also provided the following information:
Packed by AmeriGas
460 N. Gulph Road
King of Prussia, PA 19406
www.amerigas.com
Given this labeling information, plaintiffs determined that “AmeriGas” was the entity
responsible for filling the cylinder.
In order to identify the registered agent and location of AmeriGas, counsel for plaintiffs
searched the Utah Department of Commerce records. (Sbaih Aff. ¶ 6.) Plaintiffs’ search of the
name “AmeriGas” revealed five active business entities (one of which was defendant AmeriGas
Propane, L.P.) and two expired entities. All but one of these entities had the same address as that
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listed on the cylinder’s label as its registered corporate address.
On July 13, 2012, plaintiffs filed their original complaint in state court.1 Plaintiffs’
counsel did not want to name “every single ‘Amerigas’ entity” in the lawsuit, so he named only
AmeriGas, Inc., after concluding it was the appropriate party to the suit. (Sbaih Aff. ¶ 14.)
Plaintiffs’ then-counsel, Daniel O. Duffin, explained his decision to name only AmeriGas, Inc.
as follows: “I reviewed publicly available information and documentation about ‘Amerigas’, all
of which indicated that Amerigas, Inc. is the entity that fills the propane cylinder.” (Duffin Aff. ¶
10.) Plaintiffs current counsel2 similarly described the decision to name only AmeriGas, Inc.:
“Plaintiffs did not have any reasonable basis to determine the [sic] Amerigas Propane LP was the
proper entity to name . . .” and “[a]ll public information available about the ‘Amerigas’ entities
indicated that Amerigas, Inc. was the entity that filled and distributed the propane cylinders.”
(Sbaih Aff. ¶ 27)
Although plaintiffs named AmeriGas, Inc. as a defendant in the July 13, 2012 lawsuit,
plaintiffs did not serve AmeriGas, Inc. at that time. Approximately seven months later, on
February 8, 2013, plaintiffs filed an Amended Complaint in state court. The Amended
1
In the original complaint, plaintiffs named the following six defendants: Harmons
Taylorsville, LLC (the location where plainitffs purchased the grill); Fiesta Gas Grills, LLC (the
designer, manufacturer and distributor of plaintiffs’ grill ); Onward Manufacturing Company
Ltd. (a distributor of Fiesta Gas Grills); Cavagna North America, Inc. (a corporation in the
business of selling propane service valves and regulators that are sold via distributors in the
United States); Worthington Cylinder Corporation (a corporation that manufactures propane
cylinders for distribution in the United States); and AmeriGas, Inc. (Dkt. No. 2-2, Complaint
filed in Third Judicial District Court for the State of Utah.)
2
It appears that plaintiffs’ current counsel, Mr. Sbaih, did not begin to represent plaintiffs
until approximately February of 2013. (Dkt. No. 2, Exs. B & C.)
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Complaint removed several defendants because plaintiffs determined that such defendants were
either not likely liable for plaintiffs’ damages or they were defunct entities. (Sbaih ¶ 16.)
However, plaintiffs continued to include AmeriGas, Inc. as a defendant in the lawsuit.3 On
February 11, 2013, the action was removed to federal court.
On April 1, 2013, AmeriGas, Inc. was finally served with the Amended Complaint in this
case (262 days after the original complaint was filed in state court). Prior to service of the
Amended Complaint, neither AmeriGas, Inc. nor AmeriGas Propane, L.P. had received any
notice of plaintiffs’ claims in this matter. (Bimson Aff. ¶¶ 4-5.) On May 1, 2013, counsel for
AmeriGas, Inc. informed plaintiffs’ counsel that Amerigas, Inc. was not the entity responsible
for filling and distributing the propane cylinder in question but was merely a holding company,
and asked if plaintiffs would be willing to amend the Amended Complaint to name the proper
AmeriGas entity. (Sbaih Aff. ¶ 21.) A few days later, on May 7, 2013, counsel for AmeriGas,
Inc. informed plaintiffs’ counsel that AmeriGas Propane, L.P. was the proper AmeriGas entity.
On May 13, 2013, plaintiffs filed a Second Amended Complaint naming AmeriGas Propane,
L.P. as a defendant. (Sbaih Aff. ¶¶ 23-25.)
On August 28, 2013, defendant AmeriGas Propane, L.P. filed the present motion for
summary judgment. AmeriGas Propane, L.P. asserts that it is entitled to summary judgment
because the undisputed facts demonstrate that plaintiffs’ claims against AmeriGas Propane, L.P.
are barred by the applicable two-year products liability statute of limitations.
3
Plaintiffs’ Amended Complaint removed the following defendants: Harmons
Taylorsville, LLC; Fiesta Gas Grills, LLC; and Onward Manufacturing Company Ltd. Plaintiffs
determined these defendants were merely passive distributors and/or defunct. (Dkt. No. 2-4,
Amended Complaint & Oral Argument Transcript at 19.)
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Plaintiffs do not dispute that their claims are subject to a two-year statute of limitations or
that their claims against AmeriGas Propane LP were brought more than two years after their
claims accrued. Rather, plaintiffs argue that summary judgment is inappropriate because they
did not know which AmeriGas entity was the correct defendant and did not “discover” that their
claims should have been brought against AmeriGas Propane, L.P. until they were informed by
AmeriGas, Inc. in May of 2013, and therefore the statute of limitations did not begin to run until
that time.
DISCUSSION
A.
Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “A disputed fact is ‘material’ if it might affect the outcome of the suit under
the governing law, and the dispute is ‘genuine’ if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Allen v. Muskogee, Okl., 119 F.3d 837, 839
(10th Cir. 1997). A court considering summary judgment should consider the evidence in the
light most favorable to the nonmoving party. Id. A defendant may use a motion for summary
judgment to test an affirmative defense that entitles a party to a judgment as a matter of law,
including the affirmative defense of statute of limitations. Cannon v. Minnesota Mining &
Manufacturing Co., 2009 WL 350561 (D. Utah Feb. 11, 2009).
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B.
Utah Product Liability Act
The Utah Product Liability Act (UPLA) provides: “A civil action under this part shall be
brought within two years from the time the individual who would be the claimant in the action
discovered, or in the exercise of due diligence should have discovered, both the harm and its
cause.” Utah Code Ann. § 78B-6-706 (2008). Interpreting this statute, Utah courts have
determined that “the UPLA statute of limitations begins to run when the plaintiff discovers, or
should have discovered: (1) that she has been injured; (2) the identity of the maker of the
allegedly defective product; and (3) that the product had a possible causal relation to her injury.”
Hansen v. Novartis Pharms. Corp., 2011 WL 6100848, *3 (D. Utah Dec. 7, 2011) (unpublished)
(citing Aragon v. Clover Club Foods Co., 857 P.2d 250, 252-53 (Utah Ct. App. 1993)). “All
that is required to trigger the statute of limitations is sufficient information to put plaintiff on
notice to make further inquiry if she harbors doubts or questions.” Id.
C.
Analysis
The parties agree that the sole issue in this case is whether a reasonable jury could find
that plaintiffs exercised reasonable diligence in discovering the identity of AmeriGas Propane,
L.P. during the time period from July 18, 2010 (when the fire occurred) to May 13, 2011 (two
years prior to naming AmeriGas Propane, L.P. in the Second Amended Complaint).
In support of their claim that they made “reasonable efforts” to identify AmeriGas
Propane, L.P. within the statute of limitations period, plaintiffs rely on the statements of counsel,
both former and current, and assert generally that “[a]ll public information led Plaintiffs to
believe that Amerigas is the correct entity and there is nothing available in the public realm that
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plaintiffs discovered that indicated Amerigas Propane is the correct entity to name.” (Pls.’ Mem.
In Opp’n at 2.) For example, Daniel O. Duffin, who was plaintiffs’ counsel when the original
complaint was filed, stated: “I reviewed publicly available information and documentation about
‘Amerigas’, all of which indicated that Amerigas, Inc. is the entity that fills the propane
cylinder.” (Duffin Aff. ¶ 10.) Mr. Duffin also said: “[T]he information publicly available did
not indicate that Amerigas Propane, L.P. was responsible for filling the propane cylinder and/or
altering the service valve ... and AmeriGas Propane, L.P. could not have been discovered to be
the correct party without the benefit of formal discovery.” (Id. ¶¶ 25-26.) Similarly, Mr. Sbaih,
plaintiffs’ current counsel, stated: “Plaintiffs attempted to further deterimine what each
[Amerigas] entity is responsible for doing in the ‘Amerigas’ chain. However, all of Plaintiffs’
efforts returned to Amerigas, Inc.” (Sbaih Aff. ¶ 9.)
The evidence provided by plaintiffs to support their claim that they made reasonable
efforts to identify AmeriGas Propane, L.P. within the limitations period consists of nothing more
than conclusory, self-serving statements. The affidavits provided by plaintiffs’ counsel fail to set
forth any foundation for the general and sweeping conclusion that “all public information”
pointed to AmeriGas, Inc.4 To survive summary judgment, the plaintiffs’ affidavits “must be
4
Interestingly, Mr. Sbaih’s declaration itself demonstrates “public information” that
clearly suggested AmeriGas Propane, L.P. was the responsible entity. Mr. Sbaih states:
Another result [from searching AmeriGas Propane, L.P. on the internet] is from
Bloomberg Businessweek, which provides a Company Overview for AmeriGas Propane,
L.P.:
AmeriGas Propane, L.P. markets propane, propane equipment, and related
services. Its customers use propane in various areas, including home
heating, space heating, water heating, pool/spa heating, drying, cooking,
grilling, and motor fuel. The company was incorporated in 1994 and is
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based on personal knowledge and set forth facts that would be admissible in evidence;
conclusory and self-serving affidavits are not sufficient. Murray v. City of Sapulpa, 45 F.3d
1417, 1422 (10th Cir. 1995). Plaintiffs in this case have simply provided no evidence or
explanation whatsoever as to why they determined AmeriGas, Inc. was the appropriate party to
the lawsuit, or why they could not have earlier discovered that AmeriGas Propane, L.P. is the
appropriate party.
Plaintiffs do not explain why they did not – during the relevant time period – seek
information from sources other than the internet. For example, plaintiffs do not explain why
they did not attempt to contact AmeriGas through the registered agents and addresses on file
with the Utah Department of Commerce, the AmeriGas.com website, or otherwise. Moreover, it
appears that once plaintiffs did, in fact, contact an AmeriGas entity (albeit AmeriGas, Inc.)
plaintiffs were immediately informed that AmeriGas Propane, L.P. was the proper defendant.
(Sbaih Aff. ¶ 23.) It is well established that plaintiffs “cannot simply wait for information
regarding a potential defendant to come to them.” Willis v. Wal-Mart Stores, Inc., 819 F. Supp.
2d 700, 704 (M.D. Tenn. 2011). Rather, “[a] plaintiff has a duty to act with reasonable diligence
to ascertain the identity of a defendant.” Id.
Under these circumstances, the court concludes that no reasonable juror could find that
plaintiffs exercised reasonable diligence to determine the identity of AmeriGas Propane, L.P.
during the relevant time period. Plaintiffs should have known that AmeriGas Propane, L.P. was
based in King of Prussia, Pennsylvania. AmeriGas Propane, L.P. operates
as a subsidiary of AmeriGas Parnters LP.
(Doc. No. 44-1, Sbaih Aff. ¶ 1.)
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the appropriate defendant, but they failed to properly bring their claims against it until after the
statute of limitations had run. Accordingly, plaintiffs claims against AmeriGas Propane, L.P. are
barred as a matter of law. See Griffiths-Rast v. Sulzer Spine Tech., 216 Fed. Appx. 790, 196-97
(10th Cir. 2007) (affirming district court’s decision granting summary judgment where plaintiff
failed to present evidence that would allow a reasonable jury to find that even if she had used
‘diligence which is appropriate to accomplish the end sought and which is reasonably calculated
to do so,’ she should not have ascertained the identity of the manufacturer prior to expiration of
the limitations period) (quoting Aragon v. Clover Club Foods Co., 857 P.2d 250, 253 (Utah Ct.
App. 1993)).
CONCLUSION
For the reasons set forth above, defendant’s motion for summary judgment is
GRANTED.
DATED this 19th day of November, 2013.
_________________________________
Dee Benson
United States District Judge
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