United States District Court, W.D. Louisiana, Shreveport Division
MICHAEL CASEY, ET AL.
BH MANAGEMENT SERVICES INC., ET AL.
ELIZABETH E. FOOTE UNITED STATES DISTRICT JUDGE.
before the Court is a Motion to Dismiss for Failure to State
a Claim Upon Which Relief can be Granted, pursuant to Federal
Rule of Civil Procedure 12(b)(6), filed by Gemini Insurance
Company ("Gemini"). [Record Document 21]. Gemini
seeks to dismiss a third-party complaint filed against it by
BH Management Services, L.L.C.
("BHM") and Great American E&S Insurance
Company ("Great American"). [Record Document 19].
This motion is opposed. [Record Document 27]. The parties are
ordered to submit additional briefing to the Court on the
issues discussed below by Tuesday, September 3,
2019. The Court will rule on Gemini's motion
after the parties' briefs have been submitted.
case arises out of claims by Michael and Velma Casey
("the Caseys") that they suffered personal injuries
after being exposed to carbon monoxide while they were living
in an apartment complex owned by BHM. Record Document 1,
¶ 1. The Caseys allege that BHM failed to properly
repair a broken water heater in the laundry room of their
apartment complex, which caused them to suffer "extreme
carbon monoxide poisoning" on August 8, 2017. Record
Document 30, ¶s 8-11. The Caseys filed suit in the 26th
Judicial District Court for the Parish of Bossier, Louisiana,
against BHM and its liability insurer, Great American, on
June 12, 2018. Record Document 1, ¶ 1. BHM removed the
case to this Court on July 18, 2018. See Record
November 2, 2018, BHM and Great American (together,
"third-party Plaintiffs") filed a third-party
complaint against Affiliated Associates, Inc. d/b/a
Affiliated Roofing Commercial, Inc. ("Affiliated")
and Gemini. Record Document 19. The third-party Plaintiffs
claim that BHM and Affiliated executed a Vendor Service
Agreement in August of 2016 in which Affiliated agreed to
replace the roof of the Caseys' apartment complex and to
replace the roof vents as needed. Id. at ¶s
4-6. During this repair work, Affiliated allegedly dislodged
a vent pipe that was attached to the hot water heater in the
boiler room and disrupted the normal venting of carbon
monoxide, which caused the Caseys' injuries. Id.
at ¶s 7-9. The third-party Plaintiffs assert that the
Vendor Service Agreement contained a clause in which
Affiliated agreed to "indemnify, hold harmless, and
defend" BHM for all claims arising out of bodily
injuries caused by a negligent act or omission on the part of
Affiliated. Id. at ¶ 10. Finally, the
third-party Plaintiffs allege that Gemini was
Affiliated's liability insurer when the Caseys'
injuries occurred. Id. at ¶ 11. Based on these
facts, the third-party Plaintiffs claim that Affiliated
should be liable to them for any damages awarded to the
Caseys. Id. at 3. Gemini filed the instant motion to
dismiss pursuant to Rule 12(b)(6) in response to the
third-party complaint. See Record Document 21.
LAW AND ANALYSIS
order to survive a motion to dismiss brought under Rule
12(b)(6), a plaintiff must "state a claim to relief that
is plausible on its face." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). "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."
Id. "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Id. The court must accept as true
all of the factual allegations in the complaint in
determining whether a plaintiff has stated a plausible claim.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007). However, a court is "not
bound to accept as true a legal conclusion couched as a
factual allegation." Papasan v. Attain, 478
U.S. 265, 286 (1986). If a complaint cannot meet this
standard, it may be dismissed for failure to state a claim
upon which relief can be granted. Iqbal, 556 U.S. at
678-79. A court does not evaluate a plaintiffs likelihood for
success, but instead determines whether plaintiff has pleaded
a legally cognizable claim. U.S. ex rel. Riley v. St.
Luke's Episcopal Hosp., 355 F.3d 370, 376 (5th Cir.
2004). A dismissal under 12(b)(6) ends the case "at the
point of minimum expenditure of time and money by the parties
and the court." Twombly, 550 U.S. at 558.
complaints, such as the one filed in this case, are governed
by Federal Rule of Civil Procedure 14. Rule 14 enables a
defendant in a federal civil action to "serve a summons
and complaint on a nonparty who is or may be liable for all
or part of the claim against it." Fed.R.Civ.P. 14(a)(1).
"The secondary or derivative liability notion is central
and thus impleader has been successfully utilized when the
basis of the third-party claim is indemnity, subrogation,
contribution, express or implied warranty, or some other
theory." Martco Ltd. P 'ship v. Bruks Inc.,
430 Fed.Appx. 332, 334 (5th Cir. 2011) (citing 6 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 1446, at 415-21 (3d ed.
2010)). An impleader claim can only be brought when a right
to relief exists under the applicable substantive law.
Id. at 335. Finally, an impleader claim is only
available where the liability of the third-party defendant is
contingent upon the outcome of the main claim. Mitchell
v. Hood, 614 Fed.Appx. 137, 140 (5th Cir. 2015).
Arguments of the Parties
claims that the complaint fails to state a cause of action
against it and does not establish that Great American is
entitled to relief. Record Document 21-1, pp. 3-4. Gemini
asserts that the third-party Plaintiffs fail to allege facts
showing that they have a right of action against it either in
contract or under the Louisiana Direct Action Statute,
Louisiana Revised Statutes § 22:1269. Id. at 5.
third-party Plaintiffs argue that their complaint against
Gemini is properly brought under Federal Rule of Civil
Procedure 14. Record Document 27, p. 3. They allege that
Gemini will be solidarily liable with Affiliated for any part
of the Caseys' damages attributable to Affiliated, up to
the limits of Affiliated's policy. Id. They
assert that Gemini's claim that the complaint should be
dismissed because it does not establish a right of action in
contract or under the Direct Action Statute is based on a
misconception of their arguments. Id. at 3-4. The
third-party Plaintiffs also state ...