Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Liberty Mutual Fire Insurance Co. v. Fowlkes Plumbing, LLC

United States District Court, N.D. Mississippi, Aberdeen Division

May 7, 2018

LIBERTY MUTUAL FIRE INSURANCE COMPANY PLAINTIFF
v.
FOWLKES PLUMBING, LLC, QUALITY HEAT & AIR, INC., and SULLIVAN ENTERPRISES, INC. DEFENDANTS

          MEMORANDUM OPINION

         This Court has previously denied Defendants' motions for summary judgment and reconsideration because it found that the agreements entered into between the Chickasaw County School District and Defendants did not waive subrogation rights for certain property damaged in a fire. Thus, the School District's insurer, Liberty Mutual, retained rights to recover for those damages and could continue their suit against Defendants.

         Defendants now ask this Court for permission to appeal those orders [Doc. Nos. 114, 125]. Defendants further request this Court recommend the Fifth Circuit Court of Appeals certify the waiver of subrogation question to Mississippi Supreme Court. For the foregoing reasons, the Court finds the motion [127] should be granted.

         Background

         In May 2015, nonparty Chickasaw County School District entered into a contractual agreement ("Agreement" or "the Agreement") with Defendant Sullivan Enterprises to perform window restoration work on the Houlka Attendance Center. See Affidavit of Dr. Betsy Collums [Doc. No. 107-1] at ¶ 7; Document A101-2007, Agreement between Chickasaw County School District and Sullivan Enterprises, Inc. [Doc. No. 107-2, Exhibit A]. On July 30, 2015, while construction work was ongoing a fire began that consumed the entire Houlka Attendance Center Building. Collums Aff. at ¶ 11.

         As a result of this fire, Plaintiff Liberty Mutual, the school district's property insurer, paid the school district $4.3 million for the damages caused to the building. Affidavit of Jay Goldstein [Doc. No. 107-4] at ¶ 13. Liberty Mutual then brought this subrogation action against the Defendants, alleging that their negligence started the fire and seeking to recover insurance proceeds it paid out to the School District.

         In their motion for summary judgment, Defendants argued that the Agreement between Sullivan Enterprises, the contractor, and the School District provided a waiver of subrogation for the claims at hand. This Court found that the waiver of subrogation provision only extended to damages of property considered to be "Work" property as defined by the Agreement. As a result, the Agreement did not prevent Liberty Mutual from seeking recovery for damages to non-Work property. Therefore, this Court denied Defendants' motion with respect to Liberty Mutual's claims for those damages.

         To reach that decision, this Court had to decide whether the scope of the provision was determined by the nature of property damaged-an approach often described as the "minority" approach and described by this Court as the "damage type" approach-or by which insurance policy paid for the damages, described as the "majority" or "insurance source" approach. See Trinity Universal Ins. Co. v. Bill Cox Const., 75 S.W.3d 6, 11-12 (Tex. Civ. App. 2001). The Court found the "damage type" approach applicable and therefore found that the waiver of subrogation provision did not prevent Liberty Mutual from seeking to recover damages it paid for non-Work property.

         As a result, the Court granted Defendants' motion with respect to damages for Work property and denied the motion with respect to damages for non-Work property. Defendants moved for reconsideration of that order, which this Court denied. Defendants now seek to appeal those orders.

         28 U.S.C. § 1292(b) Standard

         28 U.S.C. § 1292(b) provides that a district court may grant a party permission to file an appeal of an otherwise non-appealable order when the Court finds the order: (1) involves a controlling question of law; (2) the question must be one where there is a substantial ground for a difference of opinion; and (3) an immediate appeal may materially advance the ultimate termination of litigation. To certify an order for interlocutory appeal, all three criteria must be met. Aparicio v. Swan Lake, 643 F.2d 1109, 1110 n.2 (5th Cir. Unit A Apr. 1981). Such appeals are "not favored" and courts should "strictly construe statutes permitting them." Thibodeaux v. Vamos Oil & Gas Co., 487 F.3d 288, 292 (5th Cir. 2007) (citing Complaint of Ingram Towing Co., 59 F.3d 415, 515 (5th Cir. 1995)).

         Analysis

         1. Is there a controlling question of law?

         The Court must first consider whether there is a controlling question of law. While section 1292(b) "authorizes certification of orders for interlocutory appeal, not certification of questions, " it is nonetheless "helpful if the district judge frames the controlling question(s) that the judge believes is presented by the order being ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.