State Farm Fire & Cas. v. Peco Energy Co., CIVIL ACTION NO. 19-3288
Decision Date | 13 February 2020 |
Docket Number | CIVIL ACTION NO. 19-3288 |
Parties | STATE FARM FIRE & CASUALTY CO. A/S/O DIANNE JECKOVICH v. PECO ENERGY COMPANY |
Court | U.S. District Court — Eastern District of Pennsylvania |
Presently before the Court is Defendant's Motion to Dismiss Counts II, III and IV of Plaintiff's Complaint (ECF No. 7). For the following reasons, Plaintiff's Motion will be denied.
Defendant is an electric utility company. (Compl. ¶ 5, ECF No. 1.) On October 26, 2018, certain vegetation in close proximity to one of Defendant's electric service cables fell onto the cable and caused an electrical surge. The surge, in turn, caused a fire that damaged property owned by Dianne Jeckovich ("Jeckovich"). (Id. ¶¶ 2, 8.) At the time, Plaintiff provided homeowners insurance to Jeckovich. (Id. ¶ 2.) As a result of the damage, Jeckovich filed an insurance claim with Plaintiff. Plaintiff paid the claim and assumed Jeckovich's right to sue Defendant in connection with the October 26, 2018 incident. (Id. ¶¶ 3, 9.)
Plaintiff filed suit against Defendant on July 26, 2019, asserting four counts: (1) negligence; (2) breach of contract; (3) breach of warranties; and (4) strict liability. (Id. at 3-7.) In support of its claims, Plaintiff alleges that Defendant failed to comply with its common law and contractual duties to manage the vegetation surrounding its electric service cables. (Id. ¶¶ 11-13.) On August 14, 2019, Defendant filed this Motion to Dismiss. (ECF No. 7.) On August 28, 2019, Plaintiff filed a response in opposition. (ECF No. 8.) On August 30, 2019, Defendant filed a Reply. (ECF No. 9.)
Defendant moves to dismiss Counts II, III, and IV of the Complaint for failure to state a claim under Rule 12(b)(6). On a 12(b)(6) motion, "courts 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Eid v. Thompson, 740 F.3d 118, 122 (3d Cir. 2014) ). "In order to defeat a Rule 12(b)(6) motion, plaintiffs' '[f]actual allegations must be enough to raise a right to relief above the speculative level....'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). "Thus, 'only a complaint that states a plausible claim for relief survives a motion to dismiss'" under Rule 12(b)(6). Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
Greely v. West Penn Power Co., 156 A.3d 276, 281 (Pa. Super. Ct. 2017) (quoting Schriner v. Pennsylvania Power & Light Co., 501 A.2d 1128, 1131 (Pa. Super. Ct. 1985)); see also Estate of Zimmerman v. SEPTA, 168 F.3d 680, 687 (3d Cir. 1999) ( ). That duty of care includes "install[ing] (such) lines in a safe and proper manner and thenceforth to maintain them in a safe condition upon 'reasonable inspection from time to time.'" Stark v. Lehigh Foundries, Inc., 130 A.2d 123, 130 (Pa. 1957) (quoting Durinzi v. West Penn Power Co., 55 A.2d 316, 317-18 (Pa. 1947)).
Moreover, Pennsylvania courts recognize that an electric company has a duty to maintain the vegetation surrounding its electric service cables. For example, in Yoffee v. Pennsylvania Power & Light Co., 123 A.2d 636, 642, 647 (Pa. 1956), the court held that it was for the jury to determine whether a power company's failure to remove vegetation near an electric tower was the proximate cause of an accident in which a plane flew into an inconspicuous transmission line. In Kitner v. Claverack Rural Elec. Co-op., Inc., 478 A.2d 858, 860 (Pa. Super. Ct. 1984), the court held similarly that a jury could conclude that the power company failed to take the "feasible precaution" of trimming a tree that fell onto a power line, in turn causing the electrocution of several cows. See also USAA Cas. Ins. Co. v. Metropolitan Edison Co., No. 12-1178, 2014 WL 3534946, at *14 (M.D. Pa. July 16, 2014) ( ).
Defendant's only argument in support of its Motion is that the Electric Service Tariff ("Tariff") governing its relationship with Jeckovich operates as a limitation of liability precluding Counts II, III, and IV of the Complaint.1 The Tariff language on which Defendant relies provides in relevant part:
(Tariff ¶ 12.1, ECF No. 7-2) (emphasis added).2
A cursory review of the Tariff language reveals that the language cited by Defendant may not apply here. For example, one could interpret the limitation of liability imposed by this provision to apply only to "service continuity" issues and "accident[s] ... beyond the Company's control." Accord State Farm Fire & Cas. Co. v. PECO Energy Co., No. 19-2884, 2020 WL 424763, at *4 (E.D. Pa. Jan. 27, 2020) (agreeing with Pennsylvania Superior Court's determination that "accident" clause in Tariff § 12.1 does not preclude recovery for "foreseeable" events (quoting State Farm Fire & Cas. Co. v. PECO, 54 A.3d 921, 929 (Pa. Super. Ct. 2012)). However, Plaintiff is not complaining about a service interruption or damages arising from circumstances beyond Defendant's control. Plaintiff is alleging that Defendant's failure to maintain the vegetation near its power lines (an issue that the Complaint suggests is in Defendant's control) led to property damage (not a service interruption).
Regardless, See Operative Bricklayer's Union No. 64 of Pennsylvania Welfare Fund v. Bricklayer's Local Union No. 1 of Pennsylvania Welfare Fund, 45 F.R.D. 429, 431 (E.D. Pa. 1968); accord Jade Grp., Inc. v. Cottman Transmission Ctrs., LLC, No. 16-1237, 2016 WL 3763024, at *7 (E.D. Pa. July 13, 2016) (collecting cases); cf. Lomma v. Ohio Nat'l Life Ass. Corp., 283 F. Supp. 3d 240, 260 (M.D. Pa. 2017) ( ); Masciantonio v. SWEPI LP, No. 13-797, 2014 WL 4441214, at *6 n.5 (M.D. Pa. Sept. 9, 2014) (). This is not to say that we are concluding as a matter of law that the limitation of liability in § 12.1 is inapplicable. We are not. We are concluding only that because we are unable to decide Defendant's argument on a motion to dismiss, Plaintiff's claims for breach of contract, breach of warranties, and strict liability may proceed. See Eid, 740 F.3d at 122. Our determination here is without prejudice to the parties' rights to make whatever arguments they deem appropriate in the later stages of this litigation.
Finally, we note that Plaintiff asserts additional arguments regarding the Tariff, including that the limitation of liability in § 12.1 is void as a matter of public policy and does not otherwise apply to willful and wanton conduct. Since we have determined that Plaintiff's claims are plausible, we decline to address these additional issues at this time. See L.A. v. Hoffman, 144 F. Supp. 3d 649, 672 n.13 (D.N.J. 2015) ( ); cf. Wharf, Inc. v. Dist. of Columbia, 232 F. Supp. 3d 9, 22 (D.D.C. 2017) ( ).
For the foregoing reasons, Defendant's Motion to Dismiss...
To continue reading
Request your trial