STATE FARM FIRE AND CASUALTY COMPANY a/s/o PAMELA G. MEZARAUPS, Plaintiff,
WARD MANUFACTURING, LLC, A Delaware Limited Liability Co.; LC HOMES, INC., a Delaware Corp.; LC HOMES DELAWARE, INC, a Delaware Corp.; LOUIS CAPANO & ASSOCIATES, INC, a Delaware Corp.; H&R HEATING & AIR CONDITIONING, INC, a Delaware Corp.; BROTHER'S INC.; BROTHER'S INC. a/k/a BROTHER'S ELECTRICAL CONTRACTORS OF DELAWARE, INC. a/k/a BROTHER'S ELECTRICAL CONTRACTORS OF PENNSYLVANIA, INC.; and ROYAL SERVICE CORPORATION, a Delaware Corp, Defendants.
Submitted: August 18, 2017
Defendant LC Homes, Inc. 's Motion to Dismiss.
Charles E. Butler, Judge
the Court is a Motion filed by Defendant LC Homes, Inc. to
dismiss the Complaint as to it. Finding the Motion to be
premature at this stage, the Motion is
DENIED. In support thereof, it appears to
the Court that:
2007, Pamela Mezaraups purchased a new home at 147 Haut Brion
Avenue in Newark, Delaware. In June 2015, there was a fire
that caused substantial damage to the residence.
Plaintiff State Farm insured the residence and paid on a
claim by Ms. Mezaraups. It now seeks to recoup those expenses
and has filed suit against those entities it believes were
involved in the construction, sale or warranties on the
property and its improvements. It appears that State Farm
takes the position that the fire was caused by an electrical
storm and an improper electrical grounding system.
Defendant LC Homes, Inc. was named as a defendant along with,
inter alia, LC Homes Delaware, Inc. and Louis Capano
and Associates, Inc. All three entities share the same
registered agent and the same principal place of business in
gravamen of the Motion filed by Defendant LC Homes, Inc. is
that it was not incorporated until 2008, the year after the
residence was constructed and conveyed. It urges that it
cannot be held liable for alleged construction defects that
occurred before it even existed.
Plaintiff State Farms responds that when State Farm offered a
tour of the damaged premises to all potentially responsible
parties in 2015, Louis Capano attended, as well as a
representative of "LC Homes."
Pointing to the entity creation and dissolution of Louis
Capano and Associates, Inc., Plaintiff asks that
Defendant's Motion be denied, or at least stayed pending
some discovery to determine any potential successor liability
that might attach to Defendant. Indeed, appended to its
Response to Defendant's Motion to Dismiss is an emailed
offer to stipulate to the dismissal of LC Homes, Inc. if
Defendant would simply sign an affidavit confirming that it
has no successor liability as a result of the dissolution of
Louis Capano and Associates, Inc. Defendant's election to
eschew that option in favor of filing this Motion seeking
dismissal and costs against Plaintiff for having the temerity
to name it as a defendant falls into that category of
pleadings that "doth protest too
authorities cited by Plaintiff are convincing: the Court should
not dismiss the Complaint until such time as Plaintiff has
conducted at least limited discovery to determine whether
there is some basis to hold Defendant responsible despite the
fact that it was incorporated after the date of construction.
second basis for denying Defendant's Motion to Dismiss is
its appendage of unsworn exhibits to the Motion. Where
matters outside the pleadings are presented with a motion to
dismiss, "the motion shall be treated as one for summary
judgment and disposed of as provided in Rule 56, and all
parties shall be given reasonable opportunity to present all
material made pertinent to such a motion by Rule
56." While not styled as such, Plaintiffs
request is essentially one to take discovery necessary to
respond to the motion,  which ought rightly be considered under
Rule 56, not Rule 12.
reasons stated, Defendant's Motion to Dismiss is
DENIED. The Court is certain that if there
is no basis upon which liability might attach to Defendant we
will hear from Defendant upon proper pleadings. Its Motion to
Dismiss having been denied, Defendant's Motion for Costs
of its Motion is likewise DENIED.