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
AMERIGAS PROPANE, L.P.
OF JUDGMENT: 12/14/2016
MARSHALL COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH 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.
WALLER, C.J., COLEMAN AND MAXWELL, JJ.
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."
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.
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.
Facts and Procedural History
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.
The Elliotts' Complaint
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
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
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."
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.
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.
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."
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
Plaintiffs' rationale in adding AmeriGas is that their
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.
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 ...