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Elliott v. Amerigas Propane, L.P.

Supreme Court of Mississippi

August 2, 2018

REGGIE ELLIOTT AND BRENDA EJIMOFOR, AS CO-ADMINISTRATOR AND CO-ADMINISTRATRIX OF THE ESTATE OF JOE ORLANDO ELLIOTT, DECEASED, ORLANDO ELLIOTT, AND FRANKIE MITCHELL, AS CO-GUARDIANS OF ORLANDREA ELLIOTT, A MINOR, MICHAEL ELLIOTT, AND ALMA ELLIOTT
v.
AMERIGAS PROPANE, L.P.

          DATE OF JUDGMENT: 12/14/2016

          MARSHALL COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: CASEY LANGSTON LOTT DUNCAN L. LOTT JAY MARSHALL ATKINS WARREN HORN JASON M. ZAGER MICHAEL J. TARLETON CHRISTY D. JONES ORLANDO RODRIQUEZ RICHMOND, SR MICHAEL E. McWILLIAMS MARK ALAN DREHER HARRY CASE EMBRY KENNETH MICHAEL FITZGERALD BARBRAE A. LUNDBERG PAUL PACIFIC BLAKE BRETT ANDREW SCHUBERT JOHN JEFFREY TROTTER BERNARD HESS BOOTH, III JESSE MITCHELL, III.

          ATTORNEY FOR APPELLANTS: JAY MARSHALL ATKINS.

          ATTORNEYS FOR APPELLEE: MICHAEL J. TARLETON WARREN HORN.

          BEFORE WALLER, C.J., COLEMAN AND MAXWELL, JJ.

          MAXWELL, JUSTICE.

         ¶1. An undetected flammable gas ignited and caused an explosion at the Elliotts' home. Because the Elliotts believed the flammable gas was natural gas from a broken municipal pipeline, they filed suit against the city. They also sued the chain of vendors that supplied the city with natural gas and related products. But a few years into litigation, the defendants began pointing to the propane gas tank in the Elliotts' yard. The defendants insisted propane gas-not natural gas-was the source and cause of the explosion. While the Elliotts and their experts adamantly denied that propane gas caused the explosion, the Elliotts amended their complaint, adding claims against the propane gas vendor. They did so, not because they sought to prove propane gas caused the explosion, but to avoid the risk of fault being apportioned to a nonparty-or, as they put it, to cut off an "empty chair defense."

         ¶2. But their reason for joining the propane gas defendant is now gone. The Elliotts were able to negotiate a settlement with the municipality. And summary judgment was previously granted to all of their targets-the Natural Gas Defendants-which have all been dismissed. So the Elliotts have no need to assert an empty chair defense.

         ¶3. The posture of this case has placed the Elliotts in a quandary, and they now attempt to change course to pursue the propane gas defendant-the defendant they admitted they did not believe caused the explosion. While our procedural law permitted the Elliotts to plead inconsistent, alternative claims that the explosion could have been caused by either natural gas or propane gas, it is not their pleadings that complicate this case. Rather, it is the decade the Elliotts spent pursuing only their natural gas claims, assuring both federal and state court judges that there was no merit or evidence supporting the propane gas theory. These various written and oral representations prompted Circuit Judge Andrew K. Howorth to find the Elliotts were bound by their cumulative admissions. Judge Howorth granted the propane gas defendant summary judgment, preventing the Elliotts from now taking an inconsistent position to pursue the propane gas defendant. Finding no error in the circuit judge's ruling, we affirm.

         Background Facts and Procedural History

         ¶4. Joe and Alma Elliott's Holly Springs home exploded on April 3, 2008. Joe died as a result, and Alma, her grandson Michael, and her infant granddaughter Olandrea were severely injured. Investigators quickly determined flammable gas had entered and accumulated in the Elliotts' home. The gas was then ignited, and, after initially starting a fire, caused an explosion. The next morning, the Holly Springs Utility Department's (HSUD) assistant superintendent investigated the scene and noticed "bubbling in the street." HSUD supplied natural gas to Holly Springs customers through an underground pipe network. Tests revealed a gas leak under Cuba Street, about sixty to seventy feet from the Elliotts' home. And one of the Elliotts' neighbors told investigators he had smelled natural gas in the neighborhood "off and on" before the explosion.

         I. The Elliotts' Complaint

         ¶5. On October 14, 2008, the Elliotts filed suit against HSUD, who owned and maintained the municipal gas distribution pipelines and supplied natural gas to customers. They also sued El Paso Corporation, a natural gas supplier, and numerous John Does. As discovery progressed, the Elliotts amended their complaint six times and replaced John Does with named defendants. By their final amendment, the Elliotts had named, in addition to HSUD and El Paso, Tennessee Gas & Pipeline Company, the subsidiary of El Paso that directly supplied natural gas to HSUD. They also named Tri-State Meter and Regulator Service, Inc., which supplied HSUD with warning odorant for its natural gas, and Chevron Phillips Chemical Company, L.P., Tri-State's warning-odorant supplier. These companies became known as the "Natural Gas Defendants."

         ¶6. The Elliotts claimed the Natural Gas Defendants were negligent and supplied a defective product-the warning odorant. Their theory was that natural gas from the broken Cuba Street pipeline traveled through the ground to their home. And the allegedly defective warning odorant was removed, or adsorbed, in the process. This caused natural gas to accumulate in the house without warning, leading to the explosion.

         ¶7. The Natural Gas Defendants denied liability. They pointed out the Elliotts' home was not connected to a natural gas pipeline. Instead, their home used propane gas, supplied by a large tank in their yard. The Natural Gas Defendants asserted that the fire and explosion-which originated near a propane heater in Joe and Alma's bedroom-were caused by propane gas, not natural gas. In response to this finger-pointing by the Natural Gas Defendants, the Elliotts named AmeriGas Propane, L.P., as a defendant, claiming AmeriGas was negligent and supplied a defective product. But they did not assert propane caused the explosion. As they described it, the only reason for naming AmeriGas was to prevent an "empty chair defense."

         ¶8. Even after pleading claims against AmeriGas, the Elliotts repeatedly represented-both in state and federal court-that they were "not buying the Natural Gas Defendants' theory" about propane gas. The Elliotts instead maintained that natural gas caused the fire and explosion.

         ¶9. When the defendants sought to remove the case to federal court after AmeriGas was added as a defendant, District Judge Michael P. Mills remanded the case back to Marshall County Circuit Court. He based his remand on the Elliotts' direct assertions to him that natural gas-not propane gas-had caused the explosion. And the Elliotts represented to the judge they would only present evidence to that effect.

         ¶10. AmeriGas, with the Natural Gas Defendants joining in, had argued that when the Elliotts made claims against AmeriGas, the case had been so substantially altered that it constituted a new suit. Thus, the thirty-day removal period had been revived. See 28 U.S.C. § 1446. But the Elliotts fought against removal, representing to the federal judge that their experts "have always opined that this explosion was caused by natural gas[.]" The Elliotts assured Judge Mills they would not offer any evidence or testimony that propane caused the explosion and "AmeriGas knows it." They maintained "the addition of AmeriGas will not affect the proof presented by the plaintiffs at trial."

         ¶11. Because the Elliotts admitted they were not targeting AmeriGas, the Elliotts argued the "same factual situation" was present as had existed before AmeriGas had been sued. Thus, the removal period had not been revived. The district judge acted on the Elliotts' assurances and found that:

         ¶12. Plaintiffs' rationale in adding AmeriGas is that their attorney

simply wished to avoid the apportionment of fault to a non-party at trial. Thus, the target of the Plaintiffs' attack, by their own admission, is not AmeriGas. Plaintiffs intend to present the same evidence at trial as they had planned prior to their third amendment . . . [the] Plaintiffs' legal theory of the case remains the same.

(Emphasis added.) For these reasons, Judge Mills remanded the case to state court.

         ¶13. After the case was remanded, the Elliotts made later amendments, based on subsequent deposition testimony, to their claims against AmeriGas. But they consistently represented to the court-both orally and in writing-that propane gas did not cause the explosion. The Elliotts even sought to exclude evidence and expert testimony that propane gas had caused the explosion.

         II.AmeriGas's First ...


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