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., DELMARVA POWER AND LIGHT CO. Defendants. CAP ELECTRIC, INC. Cross-Plaintiff,
DELMARVA POWER AND LIGHT CO. 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
brought this action against Defendants Cap Electric
(“CAP”) and Delmarva Power and Light Company
(“DPL”) alleging Negligence by both CAP and DPL
(Counts I & 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 herein,
DPL's Motion to Dismiss State Auto's Amended
Complaint (ECF No. 25) is DENIED. 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
indemnity claim, which is dismissed, and it is DENIED as to
CAP's contribution claim, which remains pending.
motion to dismiss stage, this Court accepts as true the facts
alleged in the Plaintiffs complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).
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
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 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 it posed 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.)
October 28, 2016, Plaintiff State Auto filed its initial
Complaint. (ECF No. 1.) Plaintiff filed its 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.) CAP filed an Amended Crossclaim
against DPL and included claims for Indemnification and/or
Contribution on February 17, 2017. (ECF No. 38.) On February
28, 2017, Cross-Defendant DPL filed a Motion to Dismiss
Defendant CAP's Amended Crossclaim Against DPL. (ECF No.
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). 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). Under the plausibility
standard, a complaint must contain “more than labels
and conclusions” or a “formulaic recitation of
the elements of a cause of action.” Twombly,
550 U.S. at 555; see Painter's Mill Grille, LLC v.
Brown, 716 F.3d 342, 350 (4th Cir. 2013).
reviewing a Rule 12(b)(6) motion to dismiss, a court
“accepts the facts as alleged” in the
Plaintiff's complaint. Quintana v. City of
Alexandria, et al., No. 16-1630, 2017 WL 2438774, at *1
(4th Cir. June 6, 2017) (citing LeSeur-Richmond Slate
Corp. v. Fehrer, 666 F.3d 261, 264 (4th Cir.
2012)); Semenova v. Maryland Transit
Admin., 845 F.3d 564, 567 (4th Cir. 2017). “At the
motion to dismiss stage, [the court must] accept as true all
of the well-pleaded allegations and view the complaint in the
light most favorable to [Plaintiff].” Id.
While a court must accept as true all the factual allegations
contained in the complaint, legal conclusions drawn from
those facts are not afforded such deference. Iqbal,
556 U.S. at 678 (“[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice” to plead a claim); see
A Society Without a Name v. Virginia, 655 F.3d
342, 346 (4th. Cir. 2011).
DPL's Motion to Dismiss the Amended Complaint (ECF No.
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 ...