Gray v. Derderian
| Decision Date | 12 December 2006 |
| Docket Number | C.A. No. 03-483L.,C.A. No. 04-312L. |
| Citation | 464 F.Supp.2d 105 |
| Parties | Albert L. GRAY, Administrator, et al., Plaintiffs, v. Jeffrey DERDERIAN, et al., Defendants. Estate of Jude B. Henault, et al., Plaintiffs, v. American Foam Corporation; et al., Defendants. |
| Court | U.S. District Court — District of Rhode Island |
Patrick T. Jones, Cooley Manion Jones LLP, Boston, MA, Mark S. Mandell, Max Wistow, Mandell, Schwartz & Boisclair, Ltd., Stephen E. Breggia, Breggia, Bowen & Grande, Eva Marie Mancuso, Hamel, Waxler, Allen & Collins, Steven A. Minicucci, Calvino Law Associates, Charles N. Redihan, Jr., Kiernan, Plunkett & Redihan, Ronald J. Resmini, Ronald J. Creamer, Law Office of Ronald J. Resmini, John P. Barylick,. Wistow & Barylick Incorporated, Providence, RI, Michael A. St. Pierre, Revens, Revens & St. Pierre, Russell Bramley, Haronian, Bramley & Harrington, LLP, Warwick, RI, Brian R. Cunha, Richard T. Gallone, Karen A. Alegria, Brian Cunha & Associates, East Providence, RI, Ralph J. Monaco, Conway & Londregan, Daniel J. Horgan, Horgan Law Offices, Robert I. Reardon, Jr., Tracy L. Poppe, The Reardon Law Firm, P.C., New London, CT, Lawrence Joseph Cappuccio, Westerly, RI, for Plaintiffs.
Anthony F. Demarco, Reynolds, Demarco & Boland, Ltd., Providence, RI, James T. Murphy, Kelly N. Michels, Hanson Curran LLP, Ian C. Ridlon, Burns & Levinson, LLP, Joseph V. Cavanagh, Jr., Kristin E. Rodgers, Blish & Cavanagh, LLP, Howard A. Merten, Partridge, Snow & Hahn LLP, Stephen J. MacGillivray, Stephen M. Prignano, Edwards Angell Palmer & Dodge LLP, Marc Desisto, Desisto Law, James R. Lee, Attorney General's Office, Richard W. MacAdams, MacAdams Wieck Deluca & Gemma Incorporated, Ronald P. Langlois, Smith & Brink, P.C., Mark T. Nugent, Morrison Mahoney LLP, Thomas C. Angelone, Hodosh, Spinella & Angelone PC, Thomas W. Lyons, III, Strauss, Factor, Laing & Lyons, Gerald C. Demaria, Higgins, Cavanagh & Cooney, C. Russell Bengtson, Carroll, Kelly & Murphy, Dennis J. Roberts, II, Steven T. Amato, Cetrulo & Capone LLP, David E. Maglio & Associates, P.C., Henry M. Swan, Davis, Kilmarx, Swan & Bowling, LLP, David A. Wollin, William F. Burke, Adler Pollock & Sheehan P.C., Providence, RI, Christopher C. Fallon, Jr., Josh M. Greenbaum, Cozen O'Connor, Andrew J. Trevelise, James J. Restivo, Reed Smith LLP, David D. Langfitt, Montgomery, McCracken, Walter & Rhoads, Philadelphia, PA, Donald M. Gregory, III, North Kingstown, RI, Edwin F. McPherson, McPherson & Kalmansohn, Los Angeles, CA, Fred A. Kelly, Jr., Kim M. Clarke, Steven M. Richard, Nixon Peabody LLP, Curtis R. Diedrich, Robert T. Norton, Sloane & Walsh, LLP, David Mitrou, Joseph Aronson, Michael McCormack, The McCormack Firm, LLC, Jennifer Creedon, Cetrulo & Capone, Lawrence G. Cetrulo Cetrulo & Capone LLP, T. Dos Urbanski Allen J. McCarthy, Michael J. Mazurczak, Melick, Porter & Shea LLP, Boston, MA, Randall L. Souza, Shechtman Halperin Savage LLP, Pawtucket, RI, Deborah G. Solmor, Skadden, Arps, Slate, Meagher & Flom, Edward M. Crane, Skadden, Arps, Slate, Meagher & Flom, Mark Parsky, McVey & Parsky, Chicago, IL, W. Thomas McGough, Jr., Reedsmith LLP, Pittsburg, PA, Charles L. Babcock, Earl H. Walker, Nancy W. Hamilton, Jackson Walker L.L.P., Houston, TX, George Wolf, John F. Murphy, Ann M. Songer, Shook, Hardy & Bacon LLP, Kansas City, MO, Carl A. Henlein, Frost Brown Todd LLC, John R. Crockett, Susan S. Wettle, James A. Ruggieri, Frost Brown Todd LLC, Louisville, KY, Georgia Ann Sullivan, The Law Offices of David J. Mathis, Hartford, CT, Bennett R. Gallo, Nolan, Dailey, Gallo & Rothemich & Brunero, Ltd., Coventry, RI, William M. Heffernan, Heffernan Law Offices, P.C., Cumberland, RI, John J. Flanagan, Attorney at Law, Warwick, RI, for Defendants.
Howard Julian, Exeter, RI, Pro se.
In Re Motions to Dismiss of Defendants Anchor Solutions Company, Inc. (previously Abacus Service Company, Inc.), V.B. Gifford & Company, Inc., Gresham & Associates of RI, Inc., and Surplex Underwriters, Inc.
DECISION AND ORDER
This matter is before the Court on Motions to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by four similarly-situated defendants. They include Anchor Solutions Company, Inc. (previously Abacus Service Company, Inc.) ("Anchor"), V.B. Gifford & Company, Inc. ("Gifford"), Gresham & Associates of RI, Inc. ("Gresham"), and Surplex Underwriters, Inc. ("Surplex"). All four companies are alleged to have conducted premises inspections at various times, in connection with the issuance or renewal of insurance policies to the premises owners. Because the allegations against these Defendants are similar and raise similar legal issues, the Court will address them together. For reasons explained below, the Court will grant the Motions to Dismiss brought by these four Defendants.
On February 20, 2003, a deadly fire in West Warwick, Rhode Island, destroyed a nightclub known as The Station. The fire started as the featured rock band, Great White, began its live performance and the club was crowded with spectators, staff and performers. The opening featured stage fireworks, ignited by the band's tour manager, as the band took the stage. According to eyewitnesses, the fireworks created sparks behind the stage which ignited polyurethane foam insulation on the club's ceiling and walls. In minutes, the entire building was on fire and over 400 people were struggling to escape the crowded, dark and smoky space. The final toll: One hundred people dead and over 200 injured.
Numerous lawsuits, both criminal and civil, were filed throughout southern New England in both state and federal courts. The lawsuits have been consolidated in this Court, which asserted its original federal jurisdiction based on the Multiparty, Multiforum, Trial Jurisdiction Act of 2002, 28 U.S.C. § 1369. See Passa v. Derderian, 308 F.Supp.2d 43 (D.R.I.2004). Since that time, this Court has ruled on several motions to dismiss. Those decisions may be found under the caption Gray v. Derderian, 335 F.Supp.2d 218 (D.R.I.2005); 371 F.Supp.2d 98 (D.R.I.2005); 389 F.Supp.2d 308 (D.R.I.2005); 400 F.Supp.2d 415 (D.R.I.2005); 404 F.Supp.2d 418 (D.R.I. 2005); and 448 F.Supp.2d 351 (D.R.I.2005).
In February 2006, Plaintiffs amended their master complaint to add more plaintiffs, and to join additional defendants, including the four Defendants herein. All claims are now incorporated in a Third Amended Master Complaint ("the Complaint"), which includes claims of over 260 plaintiffs against 97 defendants.
Defendants move to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted. Accordingly, in the course of its analysis, the Court will assume that all Plaintiffs' allegations are true. The allegations and all reasonable inferences to be drawn from them will be construed in the light most favorable to the Plaintiffs. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996). As stated by the United States Supreme Court, "the accepted rule [is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Defendants' motion will fail if "the well-pleaded facts, taken as true, justify recovery on any supportable legal theory." Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir.2000).
The allegations in the Complaint Anchor
In paragraphs 725-730 of the Complaint, Plaintiffs allege that, on or about April 27, 2000, Anchor inspected The Station premises at 211 Cowesett Avenue in West Warwick. This inspection was conducted in connection with a liability insurance policy that was issued to the owners and operators of The Station. Plaintiffs allege that the inspection was negligently performed, that Anchor knew or should have known that a competent inspection was necessary to insure the safety of club patrons, and that Anchor's negligence was the proximate cause of Plaintiffs' injuries. The specific negligent acts attributed to Anchor include, but are not limited to, the following:
a. failing to adequately inspect The Station for safety hazards and fire/building code violations;
b. failing to note the presence of highly flammable surface treatments;
c. failing to note the inadequacy of exits;
d. failing to note practices of overcrowding;
e. allowing the use of dangerous pyrotechnic devices during performances at The Station;
f. knowing of numerous dangerous conditions and fire hazards at The Station and failing to remedy those conditions or order the insureds to remedy them;
g. failing to protect members of the public for the foreseeable risk of serious injury or death at The Station;
h. failing to adequately oversee, supervise, monitor, evaluate, train and/or retrain those performing inspections of The Station; and
i. other acts and failures to act that may become apparent after discovery.
In paragraphs 719-724, Plaintiffs allege that Gifford inspected The Station premises "at various times, including but not limited to August 27, 1999 ..." in connection with a liability insurance policy issued to its owners and operators. Complaint, p. 153, ¶ 720. The allegations against Gifford are identical to the allegations against Anchor, as quoted above.
Paragraphs 666-675 pertain to Defendant Gresham. According to the Complaint, Gresham was previously known as Excess Insurance Underwriters of R.I., Inc., which carried out inspections of The Station premises during the spring of 2000, and possibly at other times, on behalf of co-defendant Underwriters at Lloyd's, London, in connection with liability insurance policies issued to co-defendants Michael Derderian and Howard Julian. The allegations against Gresham...
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Gray v. Derderian
...F.Supp.2d 308 (D.R.I.2005), 400 F.Supp.2d 415 (D.R.I.2005), 404 F.Supp.2d 418 (D.R.I.2005), 448 F.Supp.2d 351 (D.R.I.2005), and 464 F.Supp.2d 105 (D.R.I.2006). In February 2006, Plaintiffs amended their master complaint to add more plaintiffs, and to join additional defendants, Home Depot a......