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Great Northern Insurance Co. v. Whipple-Allen Real Estate

United States District Court, W.D. Pennsylvania

July 30, 2018

Great Northern Insurance Company a/s/o Roger and Nedra Richards,, Plaintiff,
v.
Whipple-Allen Real Estate and Kidder Wachter Architecture & Design,, Defendants,
v.
Kellick Construction Company, Rick Beery, Rick Beery Masonry, and Building Inspection Underwriters of Pennsylvania, Inc., Third-Party Defendants.

          MEMORANDUM OPINION

          Joy Flowers Conti Chief United States District Judge

         I. Introduction

         This subrogation action is brought by Great Northern Insurance Company (“Great Northern”) to recover funds spent to repair property damage caused by a fire. Great Northern's complaint, filed on February 2, 2018, asserted claims of negligence and breach of contract against Kidder Wachter Architecture and Design (“Kidder Wachter”) and Whipple-Allen Real Estate (“Whipple-Allen”). (ECF No. 1.) On March 7, 2018, Whipple-Allen filed a third-party complaint against additional parties Kellick Construction, Rick Beery, Rick Beery Masonry, and Building Inspection Underwriters of Pennsylvania, Inc. (“BIUPA”). (ECF No. 10.) Each of the defendants have filed cross-claims against BIUPA. (ECF Nos. 14, 28, 32.)

         On May 16, 2018, BIUPA filed a motion to dismiss the third-party claims asserted by Whipple-Allen for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 44.) BIUPA filed additional motions to dismiss the cross-claims asserted by Kidder Wachter (ECF No. 52) and Rick Beery and Rick Beery Masonry (ECF No. 50) on May 31, 2018. Each of these motions is fully briefed and ripe for review.

         II. Factual Background Taken as True for Purposes of the Motions to Dismiss

         Between 2006 and 2009, Roger and Nedra Richards engaged Kidder Wachter to provide design and architectural services for an extensive remodel and expansion project on their home. Whipple-Allen was engaged to act as the construction manager for the project.

         At all relevant times, the moving party, BIUPA, was under contract with the City of Erie to review and approve construction plans for compliance with Erie's laws, codes, ordinances and regulations. BIUPA allegedly approved the plans, drawings, and specifications submitted by Kidder Wachter without any alteration, clearing the way for the remodeling and expansion to proceed as designed.

         On March 4, 2017, a fire occurred in a portion of the property that had been added during the expansion. Great Northern, the Richards' insurance provider, alleges that the fire resulted from the negligence of Whipple-Allen and Kidder Wachter in failing to properly design, construct, inspect and install a fireplace. Great Northern also alleges that the renovation and expansion did not comply with pertinent building and safety codes and standards. Whipple-Allen, while denying Great Northern's allegations, alleges in its cross-claim that BIUPA negligently approved the plans, drawings, and specifications that were submitted for the project. The remaining third-party and cross-defendants joined in Whipple-Allen's allegations against BIUPA.

         III. Standard

         A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, when considering a motion to dismiss, the court accepts as true all well-pled factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to raise a right to relief above the speculative level” and “sufficient to state a claim for relief that is plausible on its face.” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully.. . . Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.'”

(Id. at 1949) (quoting Twombly, 550 U.S. at 556) (internal citations omitted). Two working principles underlie Twombly. Id. First, with respect to mere conclusory statements, a court need not accept as true all of the allegations contained in a complaint. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.) Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id. at 1950. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. (citing 490 F.3d at 157-58). “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]- that the pleader is entitled to relief.”' Id. (quoting Fed. Rule Civ. Proc. 8(a)(2)). A court considering a motion to dismiss may begin by identifying pleadings that are not entitled to the assumption of truth because they are mere conclusions.

While legal conclusions can provide the framework of the complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether ...

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