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Quincy Mutual Fire Insurance Co. v. Vivint Solar Developer, LLC

United States District Court, D. Massachusetts

August 20, 2018

QUINCY MUTUAL FIRE INSURANCE COMPANY a/s/o ALDA DONNELLY, Plaintiff,
v.
VIVINT SOLAR DEVELOPER, LLC, and PHILIP F. ZAMPITELLA, Defendants.

          MEMORANDUM AND ORDER ON MOTIONS TO REMAND AND DISMISS

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         Plaintiff Quincy Mutual Fire Insurance Company, on behalf of the insured, Alda Donnelly, brings this suit against Vivint Solar Developer, LLC (“Vivint”) and Philip F. Zampitella for negligence, strict liability, gross negligence, negligent supervision, fraud, breach of contract, and violations of Massachusetts General Laws chapters 93A and 142A. [ECF No. 1-1 at 6-12]. Now before the Court is a Rule 12(b)(6) motion to dismiss brought by Vivint [ECF No. 8] and a Rule 21 motion to dismiss by Zampitella [ECF No. 7], as well as a motion to remand the action to state court brought by Plaintiff [ECF No. 13].

         I. BACKGROUND

         In evaluating a motion to dismiss, the Court “must take the complaint's well-pleaded facts as true” and draw “all reasonable inferences in the pleader's favor.” Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016); see also Carden v. Klucznik, 775 F.Supp.2d 247, 249 (D. Mass. 2011) (applying 12(b)(6) standard to Rule 21 motion). The following facts are drawn from the complaint.

         Plaintiff is a property and casualty insurance company with a principal place of business in Quincy, Massachusetts. [ECF No. 1-1 ¶ 1]. Defendant Vivint is a limited liability corporation, incorporated in Delaware, with a principal place of business in Utah. Id. ¶ 3. Defendant Zampitella is an individual who resides in Ipswitch, Massachusetts. Id. at ¶ 5.

         On or about August 20, 2014, Plaintiff's subrogor, Donnelly, signed an agreement with Vivint, a company that installs residential solar panel systems, whereby Vivint would install solar panels at her home. Id. at ¶ 9. Plaintiff alleges that Howard Nell, the Vivint Solar Manager with whom she signed the agreement, failed to explain and disclose all of the terms and conditions of the proposed agreement, in violation of applicable law. Id. at ¶¶ 9, 13-15.

         On or about April 29, 2015, Vivint employees installed solar panels and related equipment on the Donnelly property. Id. at ¶ 26. Zampitella, a Master electrician, was the permit holder for the installation work at the Donnelly residence. Id. at ¶ 20. As part of the installation process, the individuals installing the solar panels allegedly drove a metallic rod into the ground outside the Donnelly property in order to ground the system and connect the residence to solar panel equipment. Id. at ¶ 27. Donnelly's property was serviced by a heating system with an underground propane gas tank, and a gas line ran from the underground propane tank into the basement. Id. at ¶ 28. The underground tank had a visible gas line cover near the area where Vivint's employees drove the rod into the ground. Id. When the installers drove the rod into the ground, it struck the underground gas line and pierced the propane line, creating a gas leak. Id. at ¶ 31. The employees then removed the grounding rod, repositioned it to another location on the Donnelly property, but did not investigate the obstruction encountered or the damage caused to the gas line. Id. at ¶ 32.

         When Donnelly's son returned home from work, he adjusted the property's thermostat, and an explosion and fire followed, which demolished the contents of the property and severely injured Donnelly and her son. Id. at ¶ 34. As a result, the installation of solar panels on the Donnelly home became impossible to perform. Id. at ¶ 35. At the time of the incident, Donnelly had an “all-risk” insurance policy with Quincy Mutual. Id. at ¶ 39. In accordance with the policy, Quincy Mutual issued actual cash value payments for the damaged property, and as a result is now seeking, as a subrogee, to recover its claim payments and the deductible from Defendants. Id. at ¶¶ 40-41.

         Plaintiff filed a complaint [ECF No. 1-1] in the Massachusetts Superior Court for Norfolk County on September 22, 2017. On November 28, 2017, Defendants removed the case to federal court based on diversity of citizenship pursuant to 28 U.S.C. § 1332. [ECF No. 1]. On December 4, 2017, Zampitella filed a Motion to Dismiss [ECF No. 7], and on December 18, 2017, Vivint filed a Motion to Dismiss [ECF No. 8]. On December 27, 2017, Plaintiff moved to remand the action to state court [ECF No. 13].

         II. MOTION TO REMAND

         A. Standard of Review

         When assessing a claim of fraudulent joinder, “the court is not bound by the allegations in the complaint and may consider affidavits and other materials that bear on the question of whether there is a reasonable basis for joinder of the defendant.” In re Fresenius Granuflo/Naturalyte Dialysate Prods. Liab. Litig., 76 F.Supp.3d 321, 333 (D. Mass. 2015) (citing Mills v. Allegiance Healthcare Corp., 178 F.Supp.2d 1, 6 (D. Mass. 2001)); see Surabian Realty Co. v. CUNA Mut. Grp., 245 F.Supp.3d 297, 299 (D. Mass. 2017) (same); Antony v. Duty Free Ams., Inc., 705 F.Supp.2d 112, 115 (D. Mass. 2010) (“[T]he fraudulent joinder doctrine provides an exception to the general rule [on a motion to dismiss] prohibiting courts from considering evidence extrinsic to the facts in the complaint.”); see also Badon v. RJR Nabisco Inc., 236 F.3d 282, 285 n.3 (5th Cir. 2000) (“Badon”) (considering “undisputed summary judgment type evidence” when determining whether any reasonable possibility of recovery under state law existed).

         B. Discussion

         Plaintiff moves to remand this case to state court, arguing that Defendants have not met their burden of demonstrating the existence of diversity jurisdiction in light of the fact that the parties are not, in fact, completely diverse. Defendants argue that removal was proper and that there is complete diversity because Zampitella was fraudulently joined. In the absence of Zampitella, there would be complete ...


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