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Tarter v. AP/AIM Rivercenter Suites, LLC

United States District Court, E.D. Kentucky, Northern Division, Covington

January 4, 2019



          David L. Bunning, United States District Judge

         This matter is before the Court on three motions-Defendant AP/AIM Rivercenter Suites LLC's ("AP/AIM") Joint Motion for Reconsideration of the Court's April 10, 2018 Order and AP/AIM's Second Motion for Summary Judgment (Doc. # 83), Defendant Ecolab Inc.'s ("Ecolab") Motion for Summary Judgment (Doc. # 85), and Ecolab's Motion to Strike Plaintiff's Sur-Reply (Doc. # 97). The Court has reviewed the motions and supporting documentation, as well its prior Orders and previously-submitted evidence. The Court has determined that AP/AIM's Motion for Reconsideration is procedurally improper and, therefore, is denied. AP/AIM's Second Motion for Summary Judgment is, however, granted, Ecolab's Motion for Summary Judgment shall be granted in part and denied in part, and Ecolab's Motion to Strike shall be granted for the reasons set forth below.


         This case arose after Plaintiff Paul Tarter contracted Legionnaires' disease in November 2015. (Doc. # 62 at 3). Tarter began working as a maintenance engineer at the Embassy Suites in Covington, Kentucky on September 30, 2015. Id. at 2-3. AP/AIM is alleged to be the owner and operator of the Embassy Suites, as a franchisee of Hilton. Id. Plaintiff was employed onsite by Aimbridge Hospitality, LLC ("Aimbridge"), which is the company responsible for operating and managing the Embassy Suites hotel and building. Id. at 5-7. Part of Tarter's job included daily work "in the vicinity of the pool/spa area" at the hotel. Id. at 3.

         While the pool at the Embassy Suites was managed by employees at the hotel, maintenance support was also provided through the "Aqua Balance Pool & Spa Program" ("Aqua Balance")-a service which Ecolab provided to the Embassy Suites in Covington. (Doc. # 62 at 5). As part of this program, Ecolab installed a remote-monitoring system in the pool facility which would measure the level of chemicals in the pool and spa water, and dispense certain chemicals as needed. (Doc. # 85-4 at 3). The system would also send alerts to the Ecolab headquarters when the chemical balance in the pool or spa was off; Ecolab would then automatically send a fax to the hotel alerting the hotel of the problem and recommending ways to restore the appropriate chemical levels in the pool or spa. Id. Ecolab, additionally, provided in-person support and training to help organizations properly and safely maintain their pools and spas. (Doc. # 85-5 at 47:4-10). One of the goals of the Aqua Balance program is to help an organization "achieve sanitized and fresh water" based upon state regulations. Id. at 48:19-24. (Dennis Fitzpatrick, an employee of Ecolab, testifying about the Aqua Balance program).

         Between late July and November 2015, Ecolab sent 523 alerts to the Embassy Suites notifying of problems with the chemical balance in the pool and spa at the hotel, (Doc. # 88-10 at 119:1-121:21), or notifying that "there's no water flowing through [the] sample cell in [the] system." (Doc. # 88-11 at 32:11-12) (Joel Flom, Customer Support Supervisor at Ecolab, explaining what the "no flow" alert meant). Around the same time, there were problems with the Ecolab controller installed at the Embassy Suites. (Doc. # 88-3 at 1, 5, 7, 18); see also (Doc. # 90-2 at 26:7-8) (Ray Toepfert, employee at the Embassy Suites, testifying that the controller "was always going off, an alarm, I'm going to say false alarms to a certain extent").

         On November 1, 2015, Tarter was instructed "to manually clean out the sand filter" for the pool and spa; this required him to scoop a large quantity of "slimy" sand out of the filter and replace it with 500 pounds of new sand, without any type of respiratory protection. (Docs. # 62 at 3, 85-1 at 2 and 85-10 at 45:8-49:12). Tarter claims that he was exposed to the Legionella bacteria while cleaning out the sand filter and during his other work with and near the potable-water system at the Embassy Suites. (Doc. # 62 at 3).

         Tarter first became ill on November 7, 2015 and was diagnosed with Legionnaires' disease on November 22, 2015. Id. He was the third person associated with the Embassy Suites in Covington to contract the disease; the first two instances were reported to the Centers for Disease Control and Prevention in August 2015. Id. at 2. Despite testing, no definitive link was ever established between water at the Embassy Suites hotel and Legionella bacteria. (Doc. # 85-9 at 1-2). Two plaintiffs experts who reviewed the circumstances of Tarter's illness, however, believe that he was exposed to Legionella bacteria when cleaning out the pool filter at the Embassy Suites. (Docs. # 85-13 at 3 and 85-14 at 10).

         Beginning on November 11, 2015, Tarter was unable to work due to his illness. (Doc. # 62 at 3). His daughter found him unconscious on November 13, 2015, and he was hospitalized from November 13 to November 25, 2015. Id. Tarter made six outpatient, follow-up visits to the hospital between December 2015 and April 2016, complaining of symptoms of pneumonia, fatigue, weakness, and anxiety. Id. at 3-4. The disease left Tarter unable to work for months after, and he "has been unable to work effectively since his illness." Id.

         As a result, Plaintiff Paul Tarter ("Tarter") initiated this suit against AP/AIM on May 10, 2016. (Doc. # 1). AP/AIM filed a Motion for Summary Judgment on August 9, 2016 (Doc. # 18) which the Court denied as premature on September 14, 2016. (Doc. # 34). Defendants were given permission to renew their motion after "the discovery period related to the issue of up-the-ladder immunity expire[d]." Id.

         With permission of the Court, Tarter filed an Amended Complaint on October 25, 2016 which added Ecolab as a defendant. (Doc. # 39). A Second Amended Complaint was filed with leave of Court on March 22, 2017. (Doc. # 62). This Complaint brought a claim for negligence against AP/AIM and two claims against Ecolab-a negligence claim and a strict products-liability claim. Id. Plaintiff specifically alleged that AP/AIM negligently selected and managed Aimbridge to operate and manage the Embassy Suites hotel and building. Id. at 5-7. Additionally, Tarter alleges that Ecolab was "negligent and failed to exercise reasonable care to avoid foreseeable injury and harm to the Plaintiff when it designed, distributed, marketed, promoted, and sold the services associated with its Aqua Balance System." Id. at 7. Tarter also brought a strict products-liability claim against Ecolab, arguing that products "associated with its Aqua Balance System" were "inherently dangerous and posed an increased risk of harm to the Plaintiff." Id. at 9.

         AP/AIM filed a Renewed Motion for Summary Judgment on September 8, 2017 (Doc. # 68) which the Court denied on April 10, 2018. (Doc. # 82). Now before the Court is AP/AIM's Motion for Reconsideration and Second Motion for Summary Judgment, which AP/AIM filed on April 27, 2018. (Doc. # 83). With this motion, AP/AIM provided new evidence including the Franchise Agreement between Hilton Franchise Holding LLC and AP/AIM, and citations issued to AP/AIM from the Kentucky Labor Cabinet Office of Occupational Safety and Health. (Docs. # 84-1 and 89-1). Tarter responded on May 16, 2018 (Doc. # 87), AP/AIM replied on May 26, 2018 (Doc. # 89), and Tarter filed a sur-reply on June 5, 2018 (Doc. # 94). The motion is now ripe for the Court's review.

         Additionally, on May 3, 2018, Ecolab moved for summary judgment on both of the claims against it. (Doc. # 85). Tarter responded on May 22, 2018 (Doc. # 88) and Ecolab replied on June 1, 2018. (Doc. # 90). Tarter filed a sur-reply without leave of court on June 8, 2018 (Doc. # 96) and Ecolab moved to strike the sur-reply as improper on June 12, 2018. (Doc. # 97). Tarter having failed to respond to Ecolab's Motion to Strike (Doc. # 97) within the required timeframe, see LR 7.1 (c), both motions are also ripe review. The Court will address each motion in turn.


         A. Motion to Reconsider

         Federal Rule of Civil Procedure 59(e) allows a court to review and reconsider a previous decision and grant a motion to reconsider "if there is clear error of law, newly discovered evidence, an intervening change in the controlling law, or to prevent manifest injustice." Johnson v. Interstate Brands Corp., 351 Fed.Appx. 36, 38 (6th Cir. 2009); Fed. R. Civ. P 59(e). Such a motion, however, cannot be brought after the denial of summary judgment; Rule 59(e) only applies to final judgments, and a denial of summary judgment is not final. Turk v. Comerford, 1:09-cv-868, 2011 WL 1899209 at *3 (N.D. Ohio, May 19, 2011), aff'd in part, rev'd in part on other grounds, 488 Fed.Appx. 933 (6th Cir. 2012) (citing Cameron v. Ohio, 344 Fed.Appx. 115, 117-18 (6th Cir. 2009)). "[W]here a motion seeks reconsideration of a denial of summary judgment, the court treats the motion as a renewed summary judgment and is 'therefore free to reconsider or reverse its decision for any reason.'" Id. (quoting Cameron, 344 Fed.Appx. at 117-18).

         In the instant case, AP/AIM styled its Motion as a "Motion to Reconsider and Defendant's Second Renewed Motion for Summary Judgment on Up the Ladder Immunity" and asks the court to reconsider its previous denial of summary judgment. (Doc. # 83). As a denial of summary judgment cannot be reconsidered, see supra, AP/AIM's Motion to Reconsider will be denied as procedurally improper. Accordingly, the Court will review the Motion only as a Second Motion for Summary Judgment. Id.

         B. Summary Judgment Standard

         A motion for summary judgment allows a court to grant judgment as a matter of law if there is no genuine dispute of material fact. Fed.R.Civ.P. 56. In making this determination, "the judge's function is not himself to weigh the evidence and determine the truth of the matter;" rather, the judge must consider if there is an issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "[T]he facts [must] be viewed in the light most favorable to the party opposing summary judgment." Shelton v. Ky. Easters Seals Soc'y., Inc. 413 S.W.3d 901, 905 (Ky. 2013); see also Scott v. Harris, 550 U.S. 372, 380 (2007). And, "[a]ll reasonable inferences [are to be drawn] in favor of the non-moving party." Bishop v. Hackel, 636 F.3d 757, 765 (6th Cir. 2011).

         The Court must deny summary judgment if there are any factual issues "that properly can only be resolved by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250. Accordingly, the party opposing the motion must show more than "metaphysical doubt" about the facts of the case. Lossia v. Flagstar Bancorp, Inc., 859 F.3d 423, 428 (6th Cir. 2018) (quoting Matsushita Bee. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "A mere scintilla of evidence [in favor of the non-moving party] is insufficient" to defeat summary judgment. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (quoting Anderson, 477 U.S. at 252). Additionally, the evidence submitted by the parties supporting or opposing summary judgment must be admissible. U.S. Structures, Inc. v. J.P. Structures, Inc., 130 F.3d 1185, 1189 (6th Cir. 1997).

         C. Review under Diversity Jurisdiction

         This personal-injury case comes before the Court on diversity jurisdiction. (Doc. # 62 at 1). Under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), a federal court sitting in diversity must apply the substantive law of the state in which it is sitting. See Hanna v. Plumer, 380 U.S. 460, 466 (1965) (explaining Erie). When deciding such a case, it is the job of the federal court to "try to make sense of the case law and to apply state law in accordance with the controlling decisions of the state [where the federal court is located]." Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir. 1999) (citing Erie R.R. Co., 304 U.S. 64) (quotations omitted). When the highest court of a state has not yet ruled on the issue before the federal court, it is up to the federal court to determine how the highest court would decide the case. Pittman v. Experian Info. Sols., Inc., 901 F.3d 619, 636 (6th Cir. 2018).

         Stated differently, the Court is to "predict how the [state supreme] court would rule by looking to all the available data." Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 453 (6th Cir. 2001). "The Court may use the decisional law of the state's lower courts, other federal courts construing state law, restatements of law, law review commentaries, and other jurisdictions on the 'majority' rule in making this determination." Meridian Mut. Ins. Co., 197 F.3d at 1181 (citing Grantham & Mann v. Am. Safety Prods., 831 F.2d 596, 608 (6th Cir. 1987)).

         As there are no Kentucky Supreme Court decisions directly on point, the Court must predict how the Kentucky Supreme Court would dispose of this Motion. See Pittman, 901 F.3d at 636. Following the direction of the Sixth Circuit, this Court will also look to "the decisions (or dicta) of the Kentucky Supreme Court in analogous cases" and "pronouncements from other Kentucky courts" for guidance. State Auto Prop, and Cas. Ins. Co. v. Hargis,785 F.3d 189, 195 (6th Cir. 2015). When interpreting Kentucky statutes, the Court is directed to ascertain and give effect to the intent of the ...

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