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Rorick v. Service Experts Heating & Air Conditioning LLC

United States District Court, E.D. Kentucky, Lexington

March 30, 2018

KIMBERLY S. RORICK, Plaintiff,
v.
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

          Joseph M. Hood, Senior U.S. District Judge

         This 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.

         I) Facts

         This 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.

         The following facts are set forth in Plaintiff's Complaint and assumed to be true for the purposes of these motions only:

         Plaintiff 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.

         On 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.

         Eventually, 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.

         On 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.[1]

         II) Legal Standard

         In 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).

         III) Analysis

         a. 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.

         b. First Cause of Action[2]

         The 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.

         c. Second through ...


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