Dero Roofing, LLC v. Triton, Inc.
| Decision Date | 24 October 2022 |
| Docket Number | 2:21-cv-688-SPC-KCD |
| Parties | DERO ROOFING, LLC, Plaintiff, v. TRITON, INC., and BASF CORPORATION, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
Before the Court are Defendants Triton, Inc. and BASF Corporation's Motions to Dismiss (Docs. 68; 69). Plaintiff Dero Roofing, LLC responded (Doc. 70). The Court grants and denies the Motions in part.
This is a products liability case. Dero is a roofing contractor. It repaired hurricane damage to the roofs on two condominium buildings (“Condos”). After Dero made the repairs, Triton trained Dero to become a certified applicator of Triton's products. Dero returned to the Condos and applied two products- TritoCryl and TritoFlex-to the roofs using a spray machine (“Sprayer”).
Defendants manufactured and distributed TritoCryl, TritoFlex and the Sprayer.
When applying the products, Dero had issues with the Sprayer. Also, the TritoFlex didn't perform well. Finally, after Dero applied the products, the TritoCryl streaked down the roof tiles onto “the exterior and interior of the [Condos], including penetration of the residents' screens, gutters, and other related areas.” (Doc. 67 at 4-5). The Condos held Dero responsible. So it got assignments of the Condos' claims and brought this action against Defendants.
A complaint must recite “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 Rule 12(b)(6) motion, the “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A facially plausible claim allows a “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
Courts accept all well-pled allegations as true and view them most favorably to plaintiff. Almanza v. United Airlines Inc., 851 F.3d 1060, 1066 (11th Cir. 2017). Sitting in diversity, the Court applies federal procedural and Florida substantive law. Glob. Quest, LLC v. Horizon Yachts Inc., 849 F.3d 1022, 1027 (11th Cir. 2017).
The Court takes the discussion in five parts. First, it clarifies the scope of the suit. Second, the Court denies the Motions to the extent that they rely on shotgun pleading grounds. Third, it discusses some claims which were already addressed by previous Orders (Docs. 50; 66). Fourth, the Court tackles the economic loss rule. And fifth, it explains why no amendment is warranted.
To start, Dero's status as Plaintiff must be oriented. Triton is correct that Dero sues as an assignee of the Condos. (Doc. 67 at 1, 3-4). Of course, “assignee stands in the shoes of the assignor.” United Water Restoration Grp. v. State Farm Fla. Ins., 173 So.3d 1025, 1027 (Fla. Dist. Ct. App. 2015). So as the Court understands it, Dero brings claims as assignee of the Condos. Dero does not allege any of its own direct claims against Defendants.
Without explanation, Dero says Triton is mistaken because it has its own causes of action, “maybe even hundreds of them,” against Triton. (Doc. 70 at 4). But Dero is the one who apparently misunderstands its own pleading. Let's leave aside the fact nothing could be construed as Dero bringing hundreds of claims against Triton. Once more, the claims are alleged by Dero as the Condos' assignee. United Fire & Cas. Co. v. Progressive Express Ins., No. 6:19-cv-1049-Orl-41EJK, 2019 WL 13067269, at *2 (M.D. Fla. Nov. 20, 2019) (). Even if there were not those pleading issues, the Complaint contains no allegations which could circumvent the economic loss doctrine (detailed below) as to Dero. Specifically, the Condos plausibly had other property damaged-not Dero. E.g., Pycsa Pan., S.A., v. Tensar Each Techs., Inc., 625 F.Supp.2d 1198, 124748 (S.D. Fla. 2008) (collecting cases) (“In Florida, a pre-requisite to claiming damage to other property is that the plaintiff must be the owner of the other damaged property.”).
So this case will proceed-as alleged-with Dero as assignee of the Condos.
With the scope settled, the Court handles the pleadings. The Complaint-while still not “a model of clarity”-is good enough from a technical standpoint. See Dressler v. Equifax, Inc., 805 Fed.Appx. 968, 972 (11th Cir. 2020). In part, BASF's argument in this regard relies on the Sprayer allegations. As discussed in Sections C and D, those theories are dismissed. So there is no need to analyze whether those allegations were made in a shotgun way. For Counts 1 and 2 (BASF's remaining challenged claims), the Complaint clarifies its theories and who they are against sufficiently to allow Defendants a chance to understand the claims and their basis. So the Motions are denied to the extent that they contend the Complaint is a shotgun pleading.
Earlier, the Court dismissed Counts 1, 2, 3, and 5 for failure to state a claim. As Triton explains, Dero did not fix the issues on Counts 3 and 5. So the Court again dismisses. After amending and considering the ruling in Section D, Counts 1 and 2 solved the problems identified in the last Order. Also, Dero realleges claims related to the Sprayer. But Judge Dudek denied its motion to amend and include such theories. So those claims are dismissed too.
Count 5 is for failure to warn. Dero realleges a deficient claim. Specifically, it still does not plead the content of the relevant warnings. Nor does it explain how the warnings were inadequate. An Order explained that is insufficient. (Doc. 50 at 10-11). So dismissal is proper. Dye v. Covidien LP, 470 F.Supp.3d 1329, 1338 (S.D. Fla. 2020) ; Bailey v. Janssen Pharmaceutica,Inc., 288 Fed.Appx. 597, 609 (11th Cir. 2008); Wright v. Howmedica Osteosis Corp., 741 Fed.Appx. 624, 626 (11th Cir. 2018).
What's more, as Triton contends, there is no contention the Condos or Dero read the warnings. This is fatal to the cause of action. E.g., Pinchinat v. Graco Children's Prods., Inc., 390 F.Supp.2d 1141, 1148 (M.D. Fla. 2005) (“Under Florida law, plaintiff's failure to read the warning label extinguishes proximate cause in a failure to warn claim.”); Cooper v. Old Williamsburg Candle Corp., 653 F.Supp.2d 1220, 1225 (M.D. Fla. 2009). Without explanation, the Complaint says, “descriptive labels and material safety data sheets . . . were relied upon and utilized by Dero.” (Doc. 67 at 23). But that does not clarify whether the Condos, Dero, or its employees actually read all the warnings. Worse yet, the Complaint never identifies what the safety data sheets even are. Because it does not allege all the warnings were read, it is impossible to conclude Defendants breached a duty to warn.
Count 3 is for fraudulent misrepresentation. Again, Dero failed to plead this claim with the required specificity. Fed.R.Civ.P. 9(b) (). As explained, this allegation demands “heightened pleading.” Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1291 (11th Cir. 2010). And once more, Dero doesn't specify the “who, what, where, when, and how” of the alleged fraud. E.g., Hopper v. Solvay Pharms., Inc., 588 F.3d 1318, 1327 (11th Cir. 2009) (cleaned up). Simply put, Dero's conclusory, boilerplate allegations that Triton made “affirmative representations and omissions” won't cut it. See (Doc. 67 at 17-18).
As for Counts 1 and 2, the problem of comingling allegations and Defendants is no longer dispositive. The Complaint only attempts to hold BASF liable for TritoCryl-which Dero also concedes in the briefing. And as discussed in Section D, only narrow claims related to TritoCryl will proceed. So the Court denies the Motions to the extent that they seek dismissal of Counts 1 and 2 for comingling.
Finally, Dero now attempts to allege claims related to the Sprayer. But it did so after the amendment deadline and following Judge Dudek specifically denying leave. So all theories as they relate to the Sprayer are dismissed.[2]
Next, Defendants seek to dismiss the remaining claims under the economic loss doctrine.[3] The economic loss rule is judge-made, and it was intended to reign in “attempts to apply tort remedies to traditional contract law damages.” Tiara Condo. Ass'n v. Marsh & McLennan Cos., 110 So.3d 399, 401 (Fla. 2013). Stated clearly, the doctrine “prohibits tort recovery when a product damages itself, causing economic loss, but does not cause personal injury or damage to any property other than itself.” Casa Clara Condo. Ass'n v. Charley Toppino and Sons, Inc., 620 So.2d 1244, 1246 (Fla. Dist. Ct. App. 1993), receded from on other grounds by Tiara, 110 So.3d 399. Two parts of that definition are often litigated-economic loss and other property.
First, economic losses equate to “disappointed economic expectations, which are protected by contract law, rather than tort law.” Casa, 620 So.2d at 1246 (cleaned up). Those might include things like “damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits.” Id. (citation omitted).
Second other property is sometimes tough to pin down. Southland Constr., Inc. v. Richeson Corp., 642 So.2d 5, 9 (Fla. Dist. Ct. App. 1994). When a defective product is “an integral or component part” of a larger item, then damage to the larger item “caused by this...
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