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HERMAN v. C.O. PORTER MACH. CO.

November 19, 1971

Harvey HERMAN, Plaintiff,
v.
C.O. PORTER MACHINERY CO., Third-Party Plaintiff. LINEMASTER SWITCH CORP., Third-Party Plaintiff, Defendants, v. GENERAL INTERIORS CORP., Third-Party Defendant. Harvey HERMAN, Plaintiff, v. HOME INSURANCE COMPANY, Defendant


Muir, District Judge.


The opinion of the court was delivered by: MUIR

Before the Court are two motions filed by defendant Home Insurance Company pursuant to F.R. Civ. P. 12(b) (6) to dismiss the complaints in the above two actions for failure to state a claim upon which relief can be granted.

 In deciding these motions, it is axiomatic that we must consider as true and correct all of plaintiff's allegations, and resolve all doubts concerning those allegations in favor of the plaintiff. Supchak v. United States, 365 F.2d 844, 845 (3rd Cir. 1966); Melo-Sonics Corporation v. Cropp, 342 F.2d 856, 858 (3rd Cir. 1965). However, for the purposes of such motions, conclusions of law and unwarranted deductions of fact are not admitted. 2A Moore, Federal Practice, P12.08, at 2265-2271 (2d Ed. 1968), and cases cited therein.

 For the reasons which follow, the motions to dismiss will be granted.

 Reduced to essentials relevant here, the complaints allege that on August 14, 1969, plaintiff Harvey Herman was an employee in the Lewisburg plant of General Interiors Corporation; that while he was working on a Model 47A hydracut saw, manufactured by C.O. Porter Machinery Company and sold to General Interiors in spring of 1969, plaintiff's hand was amputated above the wrist as a result of a defective condition or design of the saw and its footpedal; that Home Insurance Company was the products liability insurance carrier for C.O. Porter Machinery Company for a period of years prior to the date of the accident; that in May, 1969, an individual named Edward Peterson, of Whitefield, New Hampshire, had an accident while working on a C.O. Porter hydracut saw; that C.O. Porter's products liability insurance policy gave the Home Insurance Company complete power to investigate, control and settle a lawsuit subsequently filed by Edward Peterson; that as a result of Peterson's accident, Home Insurance Company conducted an investigation of C.O. Porter hydracut saws; that the Home Insurance Company learned through its investigation that the C.O. Porter hydracut saw involved in Peterson's accident was in a defective condition because of the negligent design of its footswitch; that Home Insurance Company did not notify C.O. Porter of this fact; and that C.O. Porter relied upon Home Insurance to notify it of the results of the investigation.

 Significantly, neither of the complaints allege that any act or omission on the part of Home Insurance was a cause of plaintiff's injuries. In particular, the complaints contain no allegation that Home Insurance learned of the alleged defective condition of C.O. Porter hydracut saws before plaintiff's accident on August 14, 1969; nor is this a warranted inference from the facts pleaded.

 Plaintiff predicates his claim against Home Insurance upon Restatement (Second) of Torts § 324A, which provides:

 
"§ 324A. Liability to Third Person for Negligent Performance of Undertaking
 
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
 
(a) his failure to exercise reasonable care increases the risk of such harm, or
 
(b) he has undertaken to perform a duty owed by the other to the third person, or
 
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

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