United States District Court, D. Maryland
STATE AUTO PROPERTY AND CASUALTY INSURANCE CO., as subrogee of Milton and Carol McAllister Investment Property LLC d/b/a Bigfoots Steak and Hoagie Restaurant Plaintiff,
CAP ELECTRIC, INC., and DELMARVA POWER AND LIGHT COMPANY, Defendants. CAP ELECTRIC, INC. Cross-Plaintiff,
DELMARVA POWER AND LIGHT COMPANY, Cross-Defendant.
Richard D. Bennett United States District Judge
State Auto Property and Casualty Insurance Company, as
subrogee of Milton and Carol McAllister Investment Property,
LLC d/b/a Bigfoots Steak and Hoagie Restaurant
(“Plaintiff” or “State Auto”) has
filed this action against Defendants Cap Electric
(“CAP”) and Delmarva Power and Light Company
(“DPL”) alleging Negligence by both CAP (Count I)
and DPL (Count III), Breach of Contract by CAP (Count II),
and Gross Negligence by DPL (Count IV) in connection with a
fire that destroyed the Bigfoots Steak and Hoagie Restaurant
in Rising Sun, Maryland (ECF No. 19.) Based on State
Auto's suit, CAP has filed a Crossclaim for
indemnification and contribution against DPL. (ECF No. 38.)
pending before this Court are Defendant DPL's Motion to
Dismiss the Amended Complaint (ECF No. 25) and
Cross-Defendant DPL's Motion to Dismiss CAP's Amended
Crossclaim (ECF No. 42). The Court has reviewed the parties'
submissions, and no hearing is necessary. See Loc.
R. 105.6 (D. Md. 2016). For the reasons stated below,
DPL's Motion to Dismiss State Auto's Amended
Complaint (ECF No. 25) is DENIED. In addition, DPL's
Motion to Dismiss CAP's Crossclaim (ECF No. 42) is
GRANTED IN PART and DENIED IN PART. Specifically, it is
GRANTED as to CAP's crossclaim for indemnification, which
is dismissed, and it is DENIED as to CAP's crossclaim for
motion to dismiss stage, this Court accepts as true the facts
alleged in the Plaintiff's complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir.
Steak and Hoagie is a sandwich restaurant in Rising Sun,
Maryland owned by Plaintiff Milton and Carol McAllister
Investment Properties. (Am. Compl., ECF No. 19 at 2.) Prior
to June 7, 2015, Bigfoots retained CAP to periodically repair
electric equipment and assist in electrical service to the
restaurant. (Id. ¶ 8.) Pursuant to the service
agreement, CAP upgraded the pre-existing service, installed a
new electrical panel/trough, and replaced the electrical
meter for the restaurant. (Id.) On or about June 7,
2015, a fire originated on the exterior of the Bigfoots
Restaurant building at and in the electrical panel/trough for
the restaurant. (Id. ¶ 13.) Plaintiff alleges
that the fire spread from the electrical panel/trough and
damaged Bigfoots' real and personal property.
(Id. ¶ 13.) Plaintiff also alleges the fire was
caused by CAP's improper and defective installation of
the electrical wiring for the restaurant's electrical
meter and the electrical panel/trough. (Id. ¶
Rising Sun Fire Department responded promptly to the scene of
the fire. (ECF No. 19 at ¶ 15.) As the fire's origin
was electrical, it created a risk of electrocution to the
firefighters. Accordingly, the Rising Sun Fire Department
(“RSFD”) notified DPL of the restaurant fire at
12:07 p.m., consistent with the plans for “Priority
One” emergencies. (Id. ¶ 15.) When
notified, DPL replied that it would “get someone right
out there.” (Id. ¶ 16.)
fire department, acting in accordance with the training and
instructions it received from DPL, suspended fire suppression
while it waited for DPL to arrive at the scene. (ECF No. 19
at ¶ 17.) In doing so, the Fire Department did not apply
water on a live electrical panel, as doing so would pose an
electrocution hazard. (Id. ¶ 18.) Despite
repeated assurances from DPL that it would respond promptly
to this “Priority One” emergency, it took at
least an hour for a DPL Technician to report to the scene.
(Id. ¶ 19.) Plaintiff alleges that on prior
occasions, DPL responded to Priority One emergencies in less
than 15 minutes after receiving notification of the
emergency. (Id. ¶ 20.) Plaintiff further
alleges that DPL's delay resulted in the Fire
Department's inability to suppress the flames, allowing
the fire to spread from the electrical panel/trough into the
restaurant, causing additional damage. (Id. ¶
23.) The fire resulted in damages exceeding five hundred
thousand dollars ($500, 000.00) to Bigfoots Restaurant.
(Id. ¶ 24.) Pursuant to Bigfoots' insurance
policy, State Auto supplied insurance coverage for this fire
damage and is now subrogated to the claims of Bigfoots.
(Id. ¶ 25.)
October 28, 2016, Plaintiff State Auto filed its initial
Complaint in this Court. (ECF No. 1.) Plaintiff filed an
Amended Complaint pursuant to Federal Rule of Civil Procedure
15(a)(1)(B) on December 21, 2016. (ECF No. 19.) On January
13, 2017, Defendant DPL filed a Motion to Dismiss the Amended
Complaint. (ECF No. 25.) In addition, CAP filed a Crossclaim
and, later, an Amended Crossclaim for Indemnification and/or
Contribution against DPL. (ECF No. 38.) Cross-Defendant DPL
then moved to dismiss Defendant CAP's Amended Crossclaim.
(ECF No. 42.)
12(b)(6) of the Federal Rules of Civil Procedure authorizes
the dismissal of a complaint if it fails to state a claim
upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The
purpose of Rule 12(b)(6) is “to test the sufficiency of
a complaint and not to resolve contests surrounding the
facts, the merits of a claim, or the applicability of
defenses.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006); see also Goines v.
Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir.
2016). The sufficiency of a complaint is assessed by
reference to the pleading requirements of Rule 8(a)(2), which
provides that a complaint must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a
motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain
facts sufficient to “state a claim to relief that is
plausible on its face.” Bell Atl., Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009).
reviewing a Rule 12(b)(6) motion, a court “‘must
accept as true all of the factual allegations contained in
the complaint'” and must “‘draw all
reasonable inferences [from those facts] in favor of the
plaintiff.'” E.I. du Pont de Nemours & Co.
v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)
(citations omitted); see Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Semenova v.
Maryland Transit Admin., 845 F.3d 564, 567 (4th Cir.
limited exceptions, a court may consider documents beyond the
complaint without converting the motion to dismiss to one for
summary judgment. Goldfarb v. Mayor & City Council of
Baltimore, 791 F.3d 500, 508 (4th Cir. 2015). A court
may properly consider documents that are “explicitly
incorporated into the complaint by reference and those
attached to the complaint as exhibits . . . .”
Goines, 822 F.3d at 166 (citations omitted); see
U.S. ex rel. Oberg, 745 F.3d at 136 (quoting Philips
v. Pitt Cty Memorial Hosp., 572 F.3d 176, 180 (4th Cir.
2009)); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d
195, 198 (4th Cir. 2014); Am. Chiropractic Ass'n v.
Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir.
2004), cert. denied, 543 U.S. 979 (2004);
Phillips v. LCI Int'l Inc., 190 F.3d 609, 618
(4th Cir. 1999).
I. DPL's Motion to Dismiss the Amended Complaint
(ECF No. 25) A. Negligence
support of its Motion to Dismiss plaintiff's negligence
claim (Count III), DPL relies on its Tariff with the Maryland
Public Service Commission. Specifically, DPL points ...