Elliott v. Amerigas Propane, L.P., NO. 2017-CA-00133-SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtMAXWELL, JUSTICE, FOR THE COURT
Citation249 So.3d 389
Parties Reggie ELLIOTT and Brenda Ejimofor, as Co-Administrator and Co-Administratrix of the Estate of Joe Orlando Elliott, Deceased, Orlando Elliott, and Frankie Mitchell, as Co-Guardians of Orlandrea Elliott, a minor, Michael Elliott, and Alma Elliott v. AMERIGAS PROPANE, L.P.
Docket NumberNO. 2017-CA-00133-SCT
Decision Date02 August 2018

249 So.3d 389

Reggie ELLIOTT and Brenda Ejimofor, as Co-Administrator and Co-Administratrix of the Estate of Joe Orlando Elliott, Deceased, Orlando Elliott, and Frankie Mitchell, as Co-Guardians of Orlandrea Elliott, a minor, Michael Elliott, and Alma Elliott
v.
AMERIGAS PROPANE, L.P.

NO. 2017-CA-00133-SCT

Supreme Court of Mississippi.

August 2, 2018


ATTORNEY FOR APPELLANTS: JAY MARSHALL ATKINS, Oxford

ATTORNEYS FOR APPELLEE: MICHAEL J. TARLETON, Ridgeland, WARREN HORN

BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.

MAXWELL, JUSTICE, FOR THE COURT:

¶ 1. An undetected flammable gas ignited and caused an explosion at the Elliotts' home. Because the Elliotts believed the flammable gas was natural gas from a broken municipal pipeline, they filed suit against the city. They also sued the chain of vendors that supplied the city with natural gas and related products. But a few years into litigation, the defendants began pointing to the propane gas tank in the Elliotts' yard. The defendants insisted propane gas—not natural gas—was the source and cause of the explosion. While the Elliotts and their experts adamantly denied that propane gas caused the explosion, the Elliotts amended their complaint, adding claims against the propane gas vendor. They did so, not because they sought to prove propane gas caused the explosion, but to avoid the risk of fault being apportioned to a nonparty—or, as they put it, to cut off an "empty chair defense."

¶ 2. But their reason for joining the propane gas defendant is now gone. The Elliotts were able to negotiate a settlement with the municipality. And summary judgment was previously granted to all of their targets—the Natural Gas Defendants—which have all been dismissed. So the Elliotts have no need to assert an empty chair defense.

¶ 3. The posture of this case has placed the Elliotts in a quandary, and they now attempt to change course to pursue the propane gas defendant—the defendant

249 So.3d 392

they admitted they did not believe caused the explosion. While our procedural law permitted the Elliotts to plead inconsistent, alternative claims that the explosion could have been caused by either natural gas or propane gas, it is not their pleadings that complicate this case. Rather, it is the decade the Elliotts spent pursuing only their natural gas claims, assuring both federal and state court judges that there was no merit or evidence supporting the propane gas theory. These various written and oral representations prompted Circuit Judge Andrew K. Howorth to find the Elliotts were bound by their cumulative admissions. Judge Howorth granted the propane gas defendant summary judgment, preventing the Elliotts from now taking an inconsistent position to pursue the propane gas defendant. Finding no error in the circuit judge's ruling, we affirm.

Background Facts and Procedural History

¶ 4. Joe and Alma Elliott's Holly Springs home exploded on April 3, 2008. Joe died as a result, and Alma, her grandson Michael, and her infant granddaughter Orlandrea were severely injured. Investigators quickly determined flammable gas had entered and accumulated in the Elliotts' home. The gas was then ignited, and, after initially starting a fire, caused an explosion. The next morning, the Holly Springs Utility Department's (HSUD) assistant superintendent investigated the scene and noticed "bubbling in the street." HSUD supplied natural gas to Holly Springs customers through an underground pipe network. Tests revealed a gas leak under Cuba Street, about sixty to seventy feet from the Elliotts' home. And one of the Elliotts' neighbors told investigators he had smelled natural gas in the neighborhood "off and on" before the explosion.

I. The Elliotts' Complaint

¶ 5. On October 14, 2008, the Elliotts filed suit against HSUD, who owned and maintained the municipal gas distribution pipelines and supplied natural gas to customers. They also sued El Paso Corporation, a natural gas supplier, and numerous John Does. As discovery progressed, the Elliotts amended their complaint six times and replaced John Does with named defendants. By their final amendment, the Elliotts had named, in addition to HSUD and El Paso, Tennessee Gas & Pipeline Company, the subsidiary of El Paso that directly supplied natural gas to HSUD. They also named Tri-State Meter and Regulator Service, Inc., which supplied HSUD with warning odorant for its natural gas, and Chevron Phillips Chemical Company, L.P., Tri-State's warning-odorant supplier. These companies became known as the "Natural Gas Defendants."

¶ 6. The Elliotts claimed the Natural Gas Defendants were negligent and supplied a defective product—the warning odorant. Their theory was that natural gas from the broken Cuba Street pipeline traveled through the ground to their home. And the allegedly defective warning odorant was removed, or adsorbed, in the process. This caused natural gas to accumulate in the house without warning, leading to the explosion.

¶ 7. The Natural Gas Defendants denied liability. They pointed out the Elliotts' home was not connected to a natural gas pipeline. Instead, their home used propane gas, supplied by a large tank in their yard. The Natural Gas Defendants asserted that the fire and explosion—which originated near a propane heater in Joe and Alma's bedroom—were caused by propane gas, not natural gas. In response to this finger-pointing by the Natural Gas Defendants, the Elliotts named AmeriGas Propane, L.P., as a defendant, claiming AmeriGas

249 So.3d 393

was negligent and supplied a defective product. But they did not assert propane caused the explosion. As they described it, the only reason for naming AmeriGas was to prevent an "empty chair defense."

¶ 8. Even after pleading claims against AmeriGas, the Elliotts repeatedly represented—both in state and federal court—that they were "not buying the Natural Gas Defendants' theory" about propane gas. The Elliotts instead maintained that natural gas caused the fire and explosion.

¶ 9. When the defendants sought to remove the case to federal court after AmeriGas was added as a defendant, District Judge Michael P. Mills remanded the case back to Marshall County Circuit Court. He based his remand on the Elliotts' direct assertions to him that natural gas—not propane gas—had caused the explosion. And the Elliotts represented to the judge they would only present evidence to that effect.

¶ 10. AmeriGas, with the Natural Gas Defendants joining in, had argued that when the Elliotts made claims against AmeriGas, the case had been so substantially altered that it constituted a new suit. Thus, the thirty-day removal period had been revived. See 28 U.S.C. § 1446. But the Elliotts fought against removal, representing to the federal judge that their experts "have always opined that this explosion was caused by natural gas[.]" The Elliotts assured Judge Mills they would not offer any evidence or testimony that propane caused the explosion and "AmeriGas knows it." They maintained "the addition of AmeriGas will not affect the proof presented by the plaintiffs at trial."

¶ 11. Because the Elliotts admitted they were not targeting AmeriGas, the Elliotts argued the "same factual situation" was present as had existed before AmeriGas had been sued. Thus, the removal period had not been revived. The district judge acted on the Elliotts' assurances and found that:

¶ 12. Plaintiffs' rationale in adding AmeriGas is that their attorney simply wished to avoid the apportionment of fault to a non-party at trial . Thus, the target of the Plaintiffs' attack, by their own admission, is not AmeriGas . Plaintiffs intend to present the same evidence at trial as they had planned prior to their third amendment ... [the] Plaintiffs' legal theory of the case remains the same .

(Emphasis added.) For these reasons, Judge Mills remanded the case to state court.

¶ 13. After the case was remanded, the Elliotts made later amendments, based on subsequent deposition testimony, to their claims against AmeriGas. But they consistently represented to the court—both orally and in writing—that propane gas did not cause the explosion. The Elliotts even sought to exclude evidence and expert testimony that propane gas had caused the explosion.

II. AmeriGas's First Summary-Judgment Motion

¶ 14. After remand to state court, AmeriGas filed its first motion for summary judgment. It argued the Elliotts had judicially admitted that propane gas did not cause the explosion. And even while arguing against summary judgment, the Elliotts continued to insist that natural gas had caused the explosion. The Elliotts made it clear they were actively trying to undercut the propane gas theory.1

249 So.3d 394

¶ 15. The Elliotts did not plead or argue that causation was unknown and therefore a jury question. Instead, it is the Elliotts' response to AmeriGas's first summary-judgment motion that perhaps best portrays their view that AmeriGas was not the target of their lawsuit. As they framed it:

¶ 16. [The] [d]efendants will present this theory to the jury as a potential explanation for how this explosion could have resulted from
...

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13 practice notes
  • E.K. v. Miss. Dep't of Child Prot. Servs., NO. 2017-CA-00506-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 2, 2018
    ...which w[ere to] be inquired into at the adjudicatory proceedings." In Interest of Dennis , 291 So.2d at 733. Third, the evidence offered 249 So.3d 389at the adjudicatory hearing of E.K.'s status as neglected was insufficient to support the neglect adjudication.¶ 49. While we do not doubt th......
  • Adams v. Mba Found., NO. 2018-CA-00497-COA
    • United States
    • Court of Appeals of Mississippi
    • June 4, 2019
    ...doctrine has no applicability where the order or judgment is not of a final character." Elliott v. AmeriGas Propane L.P. , 249 So. 3d 389, 399-400 (¶ 46) (Miss. 2018). The county court's ex parte order was not a final, dispositive ruling. Under Rule 54 of the Mississippi Rules of Civil Proc......
  • Johnson v. Brock, 2020-EC-00982-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • May 12, 2022
    ...and any other evidence, viewing the evidence in a light most favorable to the non-movant.’ " Elliott v. AmeriGas Propane L.P. , 249 So. 3d 389, 395 (Miss. 2018) (quoting Owen v. Pringle , 621 So. 2d 668, 670 (Miss. 1993) ). The moving party has the burden of demonstrating that there is no g......
  • Johnson v. Brock, 2020-EC-00982-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • May 12, 2022
    ...affidavits, and any other evidence, viewing the evidence in a light most favorable to the non-movant.'" Elliott v. AmeriGas Propane L.P., 249 So.3d 389, 395 (Miss. 2018) (quoting Owen v. Pringle, 621 So.2d 668, 670 (Miss. 1993)). The moving party has the burden of demonstrating that there i......
  • Request a trial to view additional results
13 cases
  • E.K. v. Miss. Dep't of Child Prot. Servs., NO. 2017-CA-00506-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • August 2, 2018
    ...which w[ere to] be inquired into at the adjudicatory proceedings." In Interest of Dennis , 291 So.2d at 733. Third, the evidence offered 249 So.3d 389at the adjudicatory hearing of E.K.'s status as neglected was insufficient to support the neglect adjudication.¶ 49. While we do not doubt th......
  • Adams v. Mba Found., NO. 2018-CA-00497-COA
    • United States
    • Court of Appeals of Mississippi
    • June 4, 2019
    ...doctrine has no applicability where the order or judgment is not of a final character." Elliott v. AmeriGas Propane L.P. , 249 So. 3d 389, 399-400 (¶ 46) (Miss. 2018). The county court's ex parte order was not a final, dispositive ruling. Under Rule 54 of the Mississippi Rules of Civil Proc......
  • Johnson v. Brock, 2020-EC-00982-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • May 12, 2022
    ...and any other evidence, viewing the evidence in a light most favorable to the non-movant.’ " Elliott v. AmeriGas Propane L.P. , 249 So. 3d 389, 395 (Miss. 2018) (quoting Owen v. Pringle , 621 So. 2d 668, 670 (Miss. 1993) ). The moving party has the burden of demonstrating that there is no g......
  • Johnson v. Brock, 2020-EC-00982-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • May 12, 2022
    ...affidavits, and any other evidence, viewing the evidence in a light most favorable to the non-movant.'" Elliott v. AmeriGas Propane L.P., 249 So.3d 389, 395 (Miss. 2018) (quoting Owen v. Pringle, 621 So.2d 668, 670 (Miss. 1993)). The moving party has the burden of demonstrating that there i......
  • Request a trial to view additional results

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