Gray v. Derderian
| Decision Date | 09 November 2005 |
| Docket Number | No. 03-483L.,No. 04-312L.,04-312L.,03-483L. |
| Citation | 448 F.Supp.2d 351 |
| Parties | Albert L. GRAY, Administrator, et al., Plaintiffs, v. Jeffery DERDERIAN, et at., 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 |
Thomas C. Angelone, Hodosh, Spinella & Angelone, Providence, RI, Joseph V. Cavanagh, Jr., Blish & Cavanagh, Providence, RI, Edward M. Crane, Deborah G. Solmor, Skadden, Arps, Slate, Meagher & Flom, Chicago, IL, Ronald J. Creamer, Providence, RI, John R. Crockett, Carl A. Henlein, Susan S. Wettle, Frost Brown Todd, LLC, Louisville, KY, Anthony F. DeMarco, Boyer, Reynolds & DeMarco, Ltd., Providence, RI, Gerald C. DeMaria, Higgins, Cavanagh & Cooney, Providence, RI, Marc DeSisto, DeSisto Law Providence, RI, Curtis R. Diedrich, Edward T. Hinchey, Sloane & Walsh, Boston, MA, Christopher C. Fallon, Jr., Cozen O'Connor, Philadelphia, PA, Fred A. Kelly, Jr., Ian C. Ridlon, Randall L. Souza, Nixon Peabody, LLP, Providence, RI, Faith A. LaSalle, Zizik, LaSalle & Powers, P.C., Providence, RI, James R. Lee, Attorney General's Office, Providence, RI, Donald J. Maroney, Providence, RI, Edwin F. McPherson, McPherson & Kalmansohn, Los Angeles, CA, Stephen J. MacGillivray, Stephen M. Prignano, William P. Robinson, III Edwards & Angell, Providence, RI, Howard A. Merten, Benjamin V. White, III, Vetter & White, Inc., Providence, RI, Kelly N. Michels, James T. Murphy, Hanson Curran, LLP, Providence, RI, James H. Reilly, III, Kelly, Kelleher, Reilly & Simpson, Providence, RI, James J. Restivo, Andrew J. Trevelise, Reed Smith, LLP, Pittsburg, PA, Kristin E. Rodgers, Blish & Cavanagh, Providence, RI, Scott J. Tucker, Tucker, Heifetz & Saltzman, Boston, MA, for defendants.
Robert I. Reardon, Jr., Robert I. Rimmer, Reardon Law Firm, P.C., New London, CT, Ronald J. Resmini, Providence, RI,
DECISION AND ORDER
In Re Motions to Dismiss of Defendants Essex Insurance Company, Multi-State Inspections, Inc., and High Caliber Inspections, Inc.
This matter comes before the Court on Motions to Dismiss filed by Defendants Essex Insurance Company ("Essex"), Multi-State Inspections, Inc. ("Multi-State"), and High Caliber Inspections, Inc. ("High Caliber") pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants seek to have this Court dismiss all allegations against them. For reasons explained at length below, Defendants' Motions to Dismiss are granted.
On February 20, 2003, a massive fire destroyed The Station nightclub in West Warwick, Rhode Island. The fire began when Great White, the featured rock band performing that evening, ignited pyrotechnic devices on stage as they began to perform. Eyewitness accounts indicated that the pyrotechnics caused the polyurethane foam insulation lining the walls and ceiling around the stage to catch fire. The entire structure was soon engulfed in flames, with dark smoke and extreme temperatures adding to the ensuing chaos as patrons, employees, and band members tried to escape. One hundred people lost their lives and over 200 others were injured as a result of the fire.
At this stage in the litigation, as reflected by the First Amended Master Complaint (hereinafter "the Complaint"), about 250 plaintiffs have sued over 50 defendants in an eighty-one count Complaint. The counts naming Essex, Multi-State and High Caliber as set forth in the Complaint are as follows:
653. The Essex Insurance Company (hereinafter "Essex") is a corporation licensed to sell liability and property and casualty insurance in the State of Rhode Island. It issued a policy of commercial liability insurance number 3CH 0430 to Michael Derderian, effective from March 24, 2002 to March 24, 2003 for The Station at 211 Cowesett Ave., West Warwick.
654. Multi-State Inspections, Inc. (hereinafter "Multi-State") is a corporation organized under the laws of the State of Rhode Island for the business of performing insurance inspections.
655. High Caliber Inspections, Inc. (hereinafter "High Caliber" is a corporation organized under the laws of the "Caliber") is a corporation organized under the laws of the State of Rhode Island" for the business of performing insurance inspections.
656. At various times, including but not limited to April 4, 1996, March 25, 1998 and October 8, 2002, Essex, through its agents and servants, Multi-State and High Caliber, conducted inspections of the premises at 211 Cowesett Ave. Essex, Multi-State and High Caliber were negligent in performing said inspections. Their negligence included without limitation:
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;
i. other acts and failures to act that may become apparent after discovery.
657. Defendants Essex, Multi-State and High Caliber, in undertaking to perform said inspections, recognized or should have recognized that the competent performance ofns was necessary for the protection of third persons, including Plaintiffs.
658. Essex' insured, Michael Derderian, relied upon the results and recommendations of said negligently performed inspections.
659. The negligence of Essex, Multi-State and High Caliber, and each of them, was a proximate cause of Plaintiffs' deaths and injuries.
Compl., ¶¶ 653-59. Plaintiffs seek damages from Essex, Multi-State and High Caliber for their negligence. Compl., ¶¶ 660-65. This writer will first address the claim against Defendant Essex.
Defendant Essex moves to dismiss the claim against it for Plaintiffs' failure to state a claim upon which relief can be granted pursuant, to Rule 12(b)(6) of the Federal Rules of Civil Procedure. "In the course of its analysis, the Court will assume that all allegations are true." Gray v. Derderian, 365 F.Supp.2d 218, 223 (D.R.I.2005).1 The allegations and all reasonable inferences to be drawn from them will be construed in the light most favorable to the Plaintiffs. See Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). As articulated 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). Defendant's 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).
In connection with the present Motion, Plaintiffs and Defendants have submitted additional material for this Court to consider. However, as the Federal Rules of Civil Procedure state and as this Court has previously noted:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Fed.R.Civ.P. 12(b). in ruling on this Motion to Dismiss. Gray, 365 F.Supp.2d at 223. See also Rodi v. S. New England Sch. of Law, 389 F.3d 5, 12 (1st Cir.2004) (); Garita Hotel Ltd. P'ship v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 18 (1st Cir.1992) ().
Standing: Rhode Island General Laws § 27-7-2
Essex argues that Plaintiffs lack standing to bring suit at this time because Rhode Island General Laws § 27-7-2 (2002 Reenactment) prohibits this type of suit until a judgment is rendered against the insured. Section 27-7-2 states in pertinent part that
However, § 27-7-2 is not applicable to the case at bar. That statute was designed to ensure that juries decide cases against an insured defendant on the merits rather than impermissibly take into consideration the fact that an insurer would pay any possible damages assessed against the defendant. Collier v. Travelers Ins. Co., 97 R.I. 315, 322, 197 A.2d 493, 496 (1964). It "permit[s] an injured party to sue a tortfeasor's liability insurer in order to obtain satisfaction of a judgment obtained against the tortfeasor." Clauson v. New...
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