Freeman v. NIBCO, Inc.

• Decision Date: 24 September 2020
• Docket Number: Case No.: 5:18-cv-00205-LCB
• Citation: 526 F.Supp.3d 1112
• Parties: Jason FREEMAN, et al., Plaintiffs, v. NIBCO, INC., Defendant.
• Court: U.S. District Court — Northern District of Alabama

526 F.Supp.3d 1112

Jason FREEMAN, et al., Plaintiffs,

v.NIBCO, INC., Defendant.

Case No.: 5:18-cv-00205-LCB

United States District Court, N.D. Alabama, Northeastern Division.

Signed September 24, 2020

David Horsley, H. Arthur Edge PC, H. Arthur Edge, III, Arthur Edge, III, P.C., John David Lawrence, Kirby D. Farris, Farris, Riley & Pitt, LLP, Birmingham, AL, for Plaintiffs Jason Freeman, Shana Freeman, Joe Garcia, Sandra Garcia, Amelia Law, Perry Law, Alphenso McFarlin, Pauline McFarlin, Betty Lovelace, Jeff McQuillan, Gregory Skaff, Kimberly Skaff, Treva Slaughter, Irving Slaughter, Eveline Picerno, Salvatore Picerno, Charles Mason, Heather Mason, Derrick Williams, Felicia Williams, Tamara Cumberland, Derrick Cumberlander, Premier Business Properties Inc.

Franco A. Corrado, Pro Hac Vice, Morgan Lewis & Bockius LLP, Philadelphia, PA, Gregory S. Ritchey, Ritchey Law Firm, PLLC, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

LILES C. BURKE, UNITED STATES DISTRICT JUDGE

The Plaintiffs are 24 individuals and one business that own houses containing allegedly defective plumbing products manufactured by the Defendant, NIBCO, Inc. The Plaintiffs assert five causes of action against NIBCO: negligence/wantonness based on failure to warn of allegedly known defects in the plumbing products (Count I) (Doc. 58, p. 21); negligence/wantonness based on design defects (Count II) (Doc. 58, p. 22); general negligence/wantonness (Count III) (Doc. 58, p. 23); breach of warranties (Count IV) (Doc. 58, p. 24); and products liability pursuant to the Alabama Extended Manufacturer's Liability Doctrine (Count V) (Doc. 58, p. 25). Presently before the Court is NIBCO's motion to dismiss the Plaintiffs’ third amended complaint (Doc. 59) and NIBCO's motion for partial summary judgment as to Count IV and Count V in the third amended complaint (Doc. 75). For the reasons stated below, the Court finds that both the motion to dismiss and the motion for partial summary judgment are due to be granted in part and denied in part.

I. BACKGROUND

NIBCO manufactures and sells cross-linked polyethylene ("PEX") plumbing tubes and fittings used to construct a plumbing system. (Doc. 58, ¶ 19). NIBCO markets its PEX products as exceptionally durable because of the way the company alters the molecular structure of the polyethylene in its products. (Doc. 58, ¶ 20).

NIBCO's PEX tubes come with an express limited warranty:

NIBCO INC. warrants that when NIBCO® PEX tube is used with NIBCO® PEX fittings, and NIBCO® valves and installation accessories, they will, under normal conditions, use and service in potable water and radiant heat systems, be free from defects in materials and workmanship for a period of twenty-five (25) years from the date of purchase when installed by a licensed professional contractor.

(Doc. 75-3, p. 2). A 10-year warranty replaces the 25-year warranty if the PEX tubes are used with non-NIBCO products in the PEX system. (Doc. 75-3, p. 2). And a separate 10-year warranty applies to NIBCO PEX fittings. (Doc. 75-3, p. 2).

The express limited warranty states how owners can obtain service under the warranty:

In the event any defect occurs which the owner believes is covered by this warranty, the owner should immediately contact NIBCO Technical Services, either in writing or by telephone .... The owner will be instructed to return said tube, fittings or accessories, at the owner's expense, to NIBCO, INC., or an authorized representative for inspection. In the event said inspection discloses to the satisfaction of NIBCO INC. that said tube, fitting or accessory is defective, a replacement shall be mailed free of charge to the owner.

(Doc. 75-3, p. 2).

The Plaintiffs own houses located in a subdivision in Madison County, Alabama. (Doc. 58, ¶ 48). NIBCO's PEX products were installed in each house during construction. (Doc. 58, ¶ 49). None of the Plaintiffs purchased the PEX products themselves; rather, their homebuilders contracted with NIBCO for the PEX products that they installed in the houses, and the Plaintiffs then purchased the houses. (Doc. 58, ¶ 48; Doc. 64, p. 6).

The Plaintiffs contend that "[o]ver the course of occupancy of the homes, Plaintiffs have experienced leaks in the PEX piping and as a result, have experienced damage to the homes akin to flooding, mold, and property damage, including but not limited to drywall, flooring, and cabinetry." (Doc. 58, ¶ 50). They allege that NIBCO is liable for the following damages caused by the leaks: diminution in the value of their houses; costs to repair the property and structure of the houses; alternative living expenses while repairs were made; costs of mold abatement; mental anguish and emotional distress; and costs to replace defective plumbing products. (Doc. 58, ¶ 52). In their three counts for negligence/wantonness, the Plaintiffs contend that NIBCO is liable for their damages because of the company's failure to warn them of known defects in the PEX products, defective design of the products, and breach of the duty to exercise reasonable care not to subject the Plaintiffs and their property to harm. (Doc. 58, pp. 21–23). In Count IV, the Plaintiffs assert that they are intended third-party beneficiaries of NIBCO's warranties that covered the PEX products, and that NIBCO breached those warranties by "failing to design, manufacture, market and distribute a product free of defects," and by failing to replace the PEX products. (Doc. 58, pp. 24–25). And in Count V, the Plaintiffs assert that NIBCO is liable for their damages under the AEMLD. (Doc. 58, pp. 25–26).

NIBCO has filed a motion to dismiss the third amended complaint in its entirety. (Doc. 59). NIBCO also has filed a motion for partial summary judgment as to Count IV (breach of warranty) and Count V (AEMLD). (Doc. 75). So the two motions partially overlap. The motion for partial summary judgment as to Count IV and Count V supersedes the motion to dismiss those two counts, so the Court will address Count IV and Count V with respect to NIBCO's motion for partial summary judgment. See Al-Rayes v. Willingham , No. 3:15-CV-107-J-34JBT, 2017 WL 2470943, at *5 (M.D. Fla. May 17, 2017) ("When the same arguments are raised in a pending motion to dismiss and a pending motion for summary judgment, several district courts within the Eleventh Circuit have concluded that it is appropriate to address the arguments in the context of the summary judgment motion.") (collecting cases); Bodiford v. State of Ala. , 854 F. Supp. 886, 888 (M.D. Ala. 1994) ("Because the motions to dismiss involve the same issues and arguments addressed in defendants’ motion for summary judgment, the court will consolidate the motions to dismiss with the motion for summary judgment and address the motions simultaneously as a motion for summary judgment."). NIBCO has not moved for summary judgment on Counts I, II, or III, so the Court will address those counts only with respect to NIBCO's motion to dismiss.

II. STANDARDS OF REVIEW

This memorandum opinion addresses both a Rule 12(b)(6) motion to dismiss and a Rule 56 motion for partial summary judgment. Different standards of review apply to the motions.

A. Standard of Review – Motion to Dismiss

Federal Rule of Civil Procedure Rule 8(a)(2) mandates that a pleading contains "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). A pleading does not have to include "detailed factual allegations" to survive. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). However, a complaint cannot simply have "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S. Ct. 1937.

A defendant can move to dismiss a complaint when he believes it is deficient. Rule 12(b)(6) allows defendants to request that the court dismiss a case for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). To survive a motion to dismiss, a plaintiff must "state a claim to relief that is plausible on its face." Iqbal , 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S. Ct. 1955 ). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S. Ct. 1937.

When reviewing a motion to dismiss, the court "accept[s] the allegations in the complaint as true and construe[s] them in the light most favorable to the plaintiff." Hunt v. Aimco Properties , 814 F.3d 1213, 1221 (11th Cir. 2016). The court is not bound to accept the plaintiff's allegations as true if they are legal conclusions. Iqbal , 556 U.S. at 678, 129 S. Ct. 1937.

B. Standard of Review – Motion for Summary Judgment

Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S. Ct. 2548. Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file -- designate specific facts showing that there is a...