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Bernard v. ADS Security, L.P.

United States District Court, W.D. Kentucky, Paducah

December 21, 2017

JUDY BERNARD, PLAINTIFF
v.
ADS SECURITY, LP. et al., DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          Thomas B. Russell, Senior Judge

         This matter comes before the Court upon two motions. First, Defendant ADS Security, L.P. ("ADS") has moved for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c). [DN 7.] Second, Defendant ADT LLC ("ADT") has also filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c). [DN 6.] These matters are ripe for adjudication. For the following reasons, both of these Motions [DN 7, DN 6] are DENIED.

         I. Factual & Procedural Background

         Plaintiff Judy Bernard ("Plaintiff) initially filed this lawsuit against ADS, ADT, and First Response, Inc.[1] in McCracken County, Kentucky Circuit Court on December 15, 2016. [DN 1-1, at 5.] Plaintiff contracted with ADT in 2005 to install and monitor a carbon monoxide detector in her home. [DN 6-1, at 1.] Plaintiff does not specify exactly how or when she ended her contract with ADT and subsequently contracted with ADS, but ADT's instant Motion notes the following: "ADT monitored [Plaintiffs] alarm system until she cancelled her ADT service and contracted with co-defendant ADS..." [Id] Likewise, ADS's instant Motion notes that ADS and Plaintiff entered into a similar monitoring agreement on March 1, 2008. [DN 7-1, at 2.]

         Much later, in January 2016, "[P]laintiff began experiencing dizziness, nausea, headaches and diarrhea. This coincided with the plaintiff using her gas fireplace. The more she used her fireplace, her sickness worsened." [DN 1-1, at 6.] Plaintiffs symptoms continued to get worse until February 15, 2016, when she "called a local heating and air company to check her home for carbon monoxide. The inspection revealed that her fireplace burners needed cleaning, that her fireplace vent was closed and that the plaintiff had been living with excessive carbon monoxide." [Id] Plaintiff alleges that, "[d]espite the high levels of carbon monoxide in the home, the carbon monoxide detectors inspected by and maintained by ADS had not indicated there was a problem." [Id] After the revelation regarding the high carbon monoxide levels in her home, "ADS came...to inspect what had happened. The plaintiff was told by an unknown employee of ADS that her carbon monoxide detector had not been working properly since on or about November, 2014." [Id] Plaintiff alleges that the "ADS employee also stated that the carbon monoxide detector had been improperly installed by ADT, LLC, a rival security company...." [Id] Plaintiff alleges negligence against both ADT and ADS arising from these events. In response, both ADS and ADT have filed Motions for Judgment on the Pleadings.

         II. Legal Standard

         Pursuant to Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." The Court analyzes a Rule 12(c) motion for judgment on the pleadings using the same standard as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Fritz v. Charter Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010). This means that, in order to survive a Rule 12(c) motion for judgment on the pleadings, the plaintiffs complaint is required to contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Tombly, 550 U.S. 544, 570 (2007). "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, 556 U.S. 662, 678 (2009). And even though "[t]he plausibility standard is not akin to a 'probability requirement, '" it necessitates "more than a sheer possibility that a defendant has acted unlawfully." Id. In other words, the allegations made by the plaintiff in her complaint must "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

         "When a Court is presented with a Rule [12(c)] motion, it may consider the Complaint and any exhibits attached thereto, public records, items appearing in the record of the case and exhibits attached to defendant's motion... so long as they are referred to in the Complaint and are central to the claims contained therein." Bassett v. Nat'l Collegiate Athletic Ass'n 528 F.3d 426, 430 (6th Cir. 2008) (citing Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001)). Finally, in considering a Rule 12(c) motion, the Court "construe[s] the complaint in the light most favorable to the nonmoving party, accept[s] the well-pled factual allegations as true, and determine[s] whether the moving party is entitled to judgment as a matter of law." Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). However, this does not mean that the Court must "accept the plaintiffs legal conclusions or unwarranted factual inferences as true." Id.

         III. Utilization of the Underlying Contracts

         As an initial matter, this Court must determine whether it can utilize the contracts between ADT and Plaintiff, and ADS and Plaintiff, in reaching its disposition here. The contracts were not attached to Plaintiffs Complaint. As noted above, the Court can consider documents attached to a defendant's motion to dismiss where such documents "are referred to in the Complaint and are central to the claims contained therein." Bassett, 528 F.3d at 430. In her Complaint, Plaintiff explains in Count II against ADT that, "[a]s described above, the plaintiff was a former customer of ADT when her carbon monoxide detector was installed." [DN 1-1, at 7.] The "above" description to which Plaintiff was presumably referring is located in Count I against ADS, and is as follows: "The plaintiff had been a customer of ADS for a few years. Part of the services she purchased from ADS was carbon monoxide detection, inspection and maintenance." [Id. at 6 (emphasis added).] Plaintiff goes on to allege that ADT was later purchased by ADS. [Id]

         The Court finds that her reference to being a paying customer of both ADT and ADS presupposes the existence of an agreement between the parties wherein Plaintiff paid for services provided by both companies. The manifestations of those agreements are the contracts between Plaintiff and ADT and Plaintiff and ADS, attached to both of the Rule 12(c) Motions here. Further, these two contracts and their terms are obviously "central to the claims" contained in Plaintiffs Complaint. See Basset, 528 F.3d at 430. Finally, Plaintiff does not contend in her Response, and the Court can find no reason why, that the usage of one or both of these contracts would be inappropriate. Thus, the Court has determined that the contracts may be considered without turning these Motions into ones for summary judgment pursuant to Rule 12(d).

         IV. ADS's Motion for Judgment on the Pleadings

         In support of its Motion for Judgment on the Pleadings, ADS argues that a clause contained in the contract between ADS and Plaintiff "decimates the viability of Plaintiffs negligence claim against ADS, " and that the Court should dismiss Plaintiffs claim accordingly. [DN 7-1, at 1.] ADS further argues that, in the alternative, should this Court allow Plaintiffs negligence claim against ADS to proceed, an order should be entered limiting any potential recovery by Plaintiff to $500.00, the amount identified in the underlying contract. [Id. at 1-2.] "In order to state a cause of action based on negligence, a plaintiff must establish a duty on [the part of] the defendant, a breach of the duty, and a causal connection between the breach of the duty and an injury suffered by the plaintiff." Lewis v. B & R Corp., 56 S.W.3d 432, 437 (Ky. Ct. App. 2001). "The existence of a duty is a question of law for the court, while breach and injury are questions of fact for the jury." Boland-Maloney Lumber Co., Inc. v. Burnett, 302 S.W.3d 680, 686 (Ky. Ct. App. 2009) (citing Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003)).

         In her Complaint, Plaintiff alleges that the sickness she suffered and the negative effects stemming therefrom were a result of a negligently installed carbon monoxide detector that failed to alert her or ADS or ADT that her home contained dangerously high levels of the gas. [DN 1-1, at 6.] She further alleges that "ADS was negligent in allowing the plaintiffs carbon monoxide detector to be in non[-]working condition for such a long period of time " [Id] In support of this contention, she notes that "ADS came to the plaintiffs home to inspect what had happened" to the carbon monoxide detector, and that "[t]he plaintiff was told by an unknown employee of ADS that her carbon monoxide detector had not been working properly since on or about November, 2014." [Id] Plaintiff also alleges that, as a result ...


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