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National Fire Insurance Co. of Hartford v. Johnson Controls Fire Protection LP

United States District Court, S.D. Florida

October 10, 2019

NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, as subrogee, a foreign corporation, Plaintiff,
JOHNSON CONTROLS FIRE PROTECTION LP, formerly known as SimplexGrinnell LP, a foreign limited partnership, Defendant.



         THIS CAUSE comes before the Court on Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. DE 36. The Court has carefully considered the Motion, Plaintiff's Response thereto [DE 38], Defendant's Reply [DE 39], and the record and is otherwise fully advised in the premises. For the reasons set forth below, the Motion to Dismiss is granted.


         Plaintiff alleges in the Second Amended Complaint[1] that it was the commercial liability insurer of Empire Roofing Company Southeast, LLC. DE 35 at 2. On February 29, 2016, an Empire Roofing employee was performing work at Marina Village at Grand Harbor Tower II, a condominium, and was walking on the joists in an attic area above a condominium unit. Id. While doing so, the employee stepped on a fire sprinkler system pipe, and the pipe ruptured, causing widespread water damage throughout the building. Id. Plaintiff subsequently paid more than $700, 000 for repairs and damages. Id. at 5.

         Plaintiff alleges that the ruptured pipe was made of chlorinated polyvinyl chloride (“CPVC”), was stamped with the words “CPVC PIPE FOR UNDERGROUND WATER MAINS, ” and was inappropriate for use in the building's fire protection system. Id. at 2. The pipe had been significantly weakened, a condition that an adequate inspection of the fire protection system would have revealed. Id. Proper and adequate piping would not have given way. Id. at 3.

         Plaintiff further alleges that Defendant conducted annual inspections and testing of Marina Village's fire protection system for many years. Id. Defendant knew or should have known that the use of the CPVC piping in the fire protection system posed risks, and Defendant had a duty to notify the building's owner that the CPVC pipe was improper and weakened, but failed to do so.[2] Id. Had Defendant notified the owner, the owner would have replaced the piping and would not have placed contractors like Empire Roofing in harm's way. Id.

         Plaintiff brings a negligence claim and a claim of equitable subrogation against Defendant. Id. at 4-6. For its negligence claim, Plaintiff contends that, by providing inspection services to Marina Village, Defendant assumed a duty to use reasonable care so as not to put “others, ” Marina Village's “invitees, ” and “members of the public” at risk. Id. at 4. Plaintiff asserts that Defendant breached that duty of care by failing to notify Marina Village's owner about the improper and unsafe piping. Id. at 4-5. Defendant now moves to dismiss the Second Amended Complaint. DE 36.


         A court may grant a party's motion to dismiss a pleading if the pleading fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion to dismiss should be granted only when the pleading fails to contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The pleading must contain more than labels, conclusions, a formulaic recitation of the elements of a cause of action, and naked assertions devoid of further factual enhancement. Id. The factual allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555.

         When ruling on a motion to dismiss, a court accepts as true the facts alleged in the complaint and draws all reasonable inferences in the plaintiff's favor. West v. Warden, 869 F.3d 1289, 1296 (11th Cir. 2017). Dismissal based on a dispositive issue of law is proper when no construction of the factual allegations will support the cause of action. Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278 (11th Cir. 2015).

         III. ANALYSIS

         To state a claim of negligence under Florida law, a plaintiff must allege that the defendant owed the plaintiff a duty of care, that the defendant breached that duty, and that the breach caused the plaintiff to suffer damages. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). The existence of a duty is a matter of law for a court to decide. McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla. 1992). A court may dismiss for failure to state a claim a complaint that does not establish a duty. See, e.g., Lamm v. State St. Bank & Tr., 749 F.3d 938 (11th Cir. 2014) (affirming a court's grant of a motion to dismiss a Florida negligence claim for failure to establish a duty)

         Florida law “recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others.” McCain, 593 So.2d at 503. “Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” Id. (emphasis and quotation omitted). “[R]easonable, general foresight is the core of the duty element.” Id. (stating that foreseeability “clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions”).

         Florida courts have identified various tests for determining when a defendant's conduct creates a “foreseeable zone of risk.” One test evaluates “the likelihood that a defendant's conduct will result in the type of injury suffered by the plaintiff.” Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont'l Grain Co., 715 So.2d 343, 345 (Fla. 4th Dist. Ct. App. 1998) (stating that this test “requires a court to evaluate whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that in the field of human experience the same type of result may be expected again” (emphasis and quotation omitted)). Another test for evaluating foreseeability ...

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