United States District Court, E.D. Kentucky, Lexington
KIMBERLY S. RORICK, Plaintiff,
SERVICE EXPERTS HEATING & AIR CONDITIONING LLC, d/b/a KNOCHELMANN PLUMBING, HEATING & AIR CONDITIONING d/b/a KNOCKELMANN SERVICE EXPERTS, SERVICE EXPERTS, LLC, LENNOX INDUSTRIES, INC., and FREIJE TREATMENT SYSTEMS, INC., Defendants.
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge
matter is before the Court on Defendant Service Experts
Heating & Air Conditioning LLC (SEHAC), Service Experts,
LLC (SE), Lennox Industries, Inc.'s various motions to
dismiss Plaintiff's Complaint. Defendant Frieje Treatment
Systems (“Frieje”) has not been served with
process. The motions are fully briefed and ready to be ruled
upon. For the reasons stated herein, the motions will be
granted in part and denied in part.
case arises from the installation of a water filtration
system at the home of Plaintiff, which she alleges resulted
in personal injury, property damage, damage to real property,
emotion/mental injury, and monetary losses.
following facts are set forth in Plaintiff's Complaint
and assumed to be true for the purposes of these motions
alleges, “upon information and belief, ” that
Lennox is “the parent corporation for Defendant Service
Experts Heating and Air Conditioning (“SEHAC”),
” and “was transacting business in the
Commonwealth of Kentucky through SEHAC.” On December 7,
2011, SEHAC made a service call to Plaintiff's home to
repair an Aqua-Pure backwash filter system, but informed
Plaintiff that SEHAC would not be able to repair the unit
because it did not service Aqua-Pure equipment. On December
12, 2011, SEHAC returned to Plaintiff's home and sold
Plaintiff two new water system units. The first was a TS
2000 Easy Water Toxin Shield Backwash Water Filter
manufactured by Defendant Freije for the entire home, and the
second was a Revita water system for the kitchen. SEHAC
installed the whole house Easy Water Toxin Shield System and
Revita water system the same day and Plaintiff paid Defendant
SEHAC in full for both systems on the same day.
December 19, 2011, Plaintiff informed SEHAC of problems with
both new water systems. On December 20, 2011, an employee
and/or agent of SEHAC came to Plaintiff's home to inspect
the systems, repair the water systems, and take a water
sample to assure Plaintiff that the water was safe to drink
and use. The employee and/or agent of SEHAC then announced
that the water filtration system was working perfectly, and
advised Plaintiff that they were taking a water sample for
testing. On December 30, 2011, another employee and/or agent
of Defendant SEHAC made a second service call to
Plaintiff's home and advised Plaintiff, “Your water
tested fine, ” and then, and on other occasions,
assured Plaintiff that the water was safe for consumption.
Plaintiff asked for the Easy Water Toxin Shield system to be
removed and asked that the original system be reinstalled.
SEHAC informed Plaintiff that it would submit claims for the
systems, but never returned to service its system, remove its
system, or return or re-install Plaintiff's original
system despite repeated assurances that they would return the
Aqua-Pure filter system or compensate Plaintiff for the loss.
On January 24, 2013, SEHAC denied any knowledge of the claim
for taking and failing to return the Aqua-Pure filter system
prior to January 23, 2013. (¶ 27). Plaintiff's
original filter system has not been returned and Plaintiff
has not received monetary compensation for it.
March 22, 2013, Plaintiff (and her spouse, who was also
acting has her attorney) filed suit in for breach of
contract, breach of warranty, fraud, damages, defamation,
unjust enrichment, and malice, oppression, or fraud in a
Kentucky state court. Defendants removed the case to the
United States District Court, Eastern District of Kentucky,
at Covington. [Rorick v. Service Experts Heating and Air
Conditioning, et al., Case No. 2:13-cv-00081-WOB-CJS)]
(referred to herein as the “prior Rorick
action”). Plaintiff voluntarily dismissed her case on
May 21, 2013. She refiled her case in this court on March 21,
2017, with many of the same claims as in the prior Rorick
action, as well as new claims for personal injury and injury
to property and conversion.
ruling on Defendants' Rule 12(b)(6) motion, the Court
must “construe the complaint in the light most
favorable to the plaintiff, accept its allegations as true,
and draw all reasonable inferences in favor of the
plaintiff.” Jones v. City of Cincinnati, 521
F.2d 555, 559 (6th Cir. 2008). The Court is not bound to
accept as true “recitals of the elements of a cause of
action, supported by mere conclusory statements[.]”
Ashcroft v. Iqbal, 556 U.S. 662, 678. “To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “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.” Id. (citing
Twombly, 550 U.S. at 556).
Lennox and SE
Plaintiff argues Defendants Lennox and SE should be held
liable for the actions of their “agent” SEHAC
“pursuant to the doctrines of agency, respondeat
superior and/or estoppel.” [Complaint, ¶¶
8-9]. This is the only allegation Plaintiff makes regarding
any agency relationship between Lennox, SE and SEHAC.
Although the Court must accept all well-pled factual
allegations, the existence of an agency relationship is a
legal determination that is not entitled to the same
presumption. See Papasan v. Allain, 478 U.S. 265,
286 (1986) (“Although for the purposes of this motion
to dismiss we must take all the factual allegations in the
complaint as true, we are not bound to accept as true a legal
conclusion couched as a factual allegation.”).
“When attempting to plead liability through agency, a
claimant must plead facts that would support a finding that
the alleged agents had actual or apparent authority to act on
behalf of another.” Pixler v. Huff, 2012 WL
3109492, at *9 (W.D.Ky. July 31, 2012)(internal quotation
marks and citation omitted). Plaintiff asserts nothing more
than a parent-subsidiary relationship between these
defendants. This is insufficient to justify the finding of an
agency relationship. See Moore v. Lowe's Companies,
Inc., 2013 WL 1907488 at n. 4 (W.D.Ky. May 7, 2013).
Because the Court has no basis to find SE or Lennox
vicariously liable for the actions of SEHAC, the claims
against these defendants as agents will be dismissed.
First Cause of Action
first cause of action does not relate to or make allegations
against Lennox, SEHAC, or SE; therefore the Court will not
address it herein. Plaintiff alleges only that Frieje
manufactured the water system at issue. To the extent the
first cause of action is brought against Lennox, SEHAC, or
SE, this claim will be dismissed.
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