Cortes v. Honeywell Bldg. Solutions Ses Corp.

37 F.Supp.3d 1260

Lissys CORTES, et al., Plaintiffs

v.HONEYWELL BUILDING SOLUTIONS SES CORPORATION, et al., Defendants.

Case No. 14–20429–CIV.

United States District Court, S.D. Florida.

Signed Aug. 12, 2014.

David Mark Brandwein, David M. Brandwein, Fort Lauderdale, FL, Jeannete C. Lewis, Lewis Legal Group, P.A., Robert J. McKee, The McKee Law Group LLC, David Wayne Brill, Brill & Rinaldi, The Law Firm, Weston, FL, Joseph J. Rinaldi, Jr., Anely Michelle Hernandez, Brill & Rinaldi, Coral Gables, FL, Juan Manuel Garcia, Jr., Brill Rinaldi Garcia, Miami, FL, for Plaintiffs.

Jannine L. Lee, Todd A. Noteboom, Stinson, Leonard, Street, LLP, Minneapolis, MN, Scott N. Wagner, Justin Scott Brenner, Lori P. Lustrin, Bilzin Sumberg Baena Price & Axelrod, LLP, Miami, FL, for Defendants.

ORDER

CECILIA M. ALTONAGA, District Judge.

THIS CAUSE comes before the Court upon Defendants, Honeywell Building Solutions SES Corporation (“Honeywell Building”) and Honeywell International, Inc.'s (“Honeywell International['s]”) (collectively, “Defendants[']”) Motion to Dismiss First Amended Complaint ... (“Motion”) [ECF No. 28]. Plaintiffs, Lissys Cortes (“Cortes”) and David Knight (“Knight”) filed their Response ... (“Response”) [ECF No. 37], and Defendants replied (“Reply”) [ECF No. 41].¹ The Court has carefully reviewed the parties' written submissions and applicable law.

I. BACKGROUND²

This case involves claims by Plaintiffs Lissys Cortes (“Cortes”) and David Knight (“Knight”), in connection with Defendants' alleged negligence and gross negligence in replacing analog electric meters with Smart Meters in Plaintiffs' homes. (See Am. Compl. 22–29). In 2009, Florida Power & Light (“FPL”) implemented a program to replace commercial and residential customers' analog electric meters with Smart Meters. (See id. ¶ 17). Smart Meters purport to provide additional information regarding power usage and more accurate readings than their analog counterparts. (See id. ¶ 18). FPL formulated, deployed, and managed the Smart Meter installation plan and hired Defendants, Honeywell Building and Honeywell International, to perform the installations. (See id. ¶ 23).

The electric meter, property of FPL, is housed inside an enclosure or “box” known as a “meter can” that connects the meter to the electrical infrastructure of a residential customer's home. (Id. ¶ 15). FPL owns and is responsible for all Smart Meters, while homeowners own and are responsible for the meter can and their side of the connection—all of the wiring in the home that connects to the meter. (See id. ¶¶ 7, 15, 17). An electric meter connects to the home via “male” metal prongs, which connect into “female” receptors inside a meter can. (See id. ¶ 16). Before the advent of Smart Meters, the male and female meter connections had varying dimensions, requiring female receptors to be properly matched with male connectors. (See id. ). FPL's installation plan required replacing existing male connectors with various iterations of Smart Meter connectors, each designed differently and possessing different male connectors. (See id. ¶¶ 17, 20).

One or more of the Defendants entered Cortes's property without her knowledge and replaced her working analog electric meter with a Smart Meter. (See id. ¶ 2). Her meter was not in need of repair or replacement due to obsolescence or wear. (See id. ). “As a result of improper installation of the Smart Meter,” Cortes “suffered arcing in her meter and resulting economic damages,” including “the cost of repair or replacement of property and the cost of updating components of her property to current code due to reasonably necessary repair work caused by the arcing....”³ (Id. ¶ 3). The damages to the meter and associated equipment were not on the “Customer's side of the point of delivery.” (Id. ¶ 39). Cortes was:

forced to hire an electrician who, on or about October 11, 2013, removed the existing meter blocks and installed new meter terminals on A and B phases, installed new lug terminals, installed new feeder wires, piped, wired and installed a new dual rod grounding system, and charged for the requisite permitting and inspection fees.

(Id. ¶ 3). Cortes contends the arcing damaged her air conditioner and pool motor. (See id. ).

One or more of the Defendants similarly entered Knight's property without his knowledge and replaced his working analog electric meter with a Smart Meter. (See id. ¶ 4). His meter was not in need of repair or replacement. (See id. ). “As a result of improper installation of the smart meter,” Knight “suffered arcing in his meter can[ ] and resulting economic damages.” (Id. ¶ 5 (alteration added)). He “was forced to hire an electrician who, on or about October 22, 2013, removed existing burnt lug on ‘A’ phase for line side, installed a new meter lug, replaced a neutral lug, and charged the requisite permitting and inspection fees.” (Id. ). The damages to the meter and associated equipment were not on the “Customer's side of the point of delivery.” (Id. ¶ 39).

Plaintiffs state four claims against Defendants: one count of negligence and one count of gross negligence against each Defendant. (See id. 22–29). Plaintiffs bring this action on behalf of themselves and all others similarly situated (the “Potential Class”) pursuant to Federal Rule of Civil Procedure 23. (See Am. Compl. ¶ 40). The proposed Potential Class consists of: “All persons and entities who suffered property damage and consequential financial loss as a result of [Defendants'] improper Smart Meter installation.” (Id. ¶ 41 (alteration added)).

Plaintiffs allege Defendants breached their duties “to install the Smart Meters in a competent, safe[,] and reasonable manner” and “warn of any risks associated with improper installation of the Smart Meters.” (Id. ¶¶ 55–56 (alteration added); see id. ¶¶ 61–62). Plaintiffs claim Defendants' installation practices were unsafe and improper:

Defendants' employees or agents would strike the old meter with extreme force to knock the meter loose. Then they would strike the Smart Meter with extreme force to install it in place of the old meter. What should take five to seven minutes was taking a mere 90 seconds, and, as a consequence, the “Female” receptors would bend and expand the [sic] during removal of the old meter and the “Female” receptors would crush during the installation of the new Smart Meter.

(Id. ¶ 36). Plaintiffs further allege Defendants breached their duty of care with gross negligence, “engaging in a course of conduct such that the likelihood of injury to other persons or property was known by Defendant[s] to be imminent or clear and present....” (Id. ¶ 69 (alteration added); see id. ¶ 75). “Defendants' improper installation of the Smart Meters is the only reason Plaintiffs and every putative class member suffered the damages they did.” (Id. ¶ 6). Plaintiffs sought reimbursement for their damages from FPL, but FPL denied the request asserting the homeowner, rather than FPL, “is required to bear the cost of the damage because it occurred on the [homeowner]' s side of the connection....” (Id. ¶ 7 (alterations added)).

Defendants move to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. (See Mot. 5–15).⁴

II. LEGAL STANDARDS

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this pleading standard “does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555, 127 S.Ct. 1955. Indeed, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). To meet this “plausibility standard,” a plaintiff must “plead [ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (alteration added)). “The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. Coca–Cola Co., 578 F.3d 1252, 1261 (11th Cir.2009) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ).

III. ANALYSIS

Defendants assert FPL's Tariff (see Mot., Ex. B (“FPL Tariff”) [ECF No. 28–2] ) bars the negligence claims, as it expressly exempts “FPL and its servants, agents[,] and employees from liability arising out of interruptions in service or fluctuations in voltage caused by ordinary negligence.” (Mot. 6 (alteration added)). The FPL Tariff “bars customers from recovering any damages relating to the [c]ustomer's side of the meter connection.” (Id. 7 (alteration added)). Defendants also state Plaintiffs have not alleged a plausible negligence claim because they fail to plead Defendants owed or breached a duty of care or that Defendants' breach caused Plaintiffs' harm. (See id. 10–14). As to the gross negligence claim, Defendants insist the Amended Complaint “contains no allegations of ‘imminent’ or ‘clear and present’ danger, let alone [Defendants'] awareness of such a danger.” (Id. 15 (alteration added)).

Plaintiffs maintain the FPL Tariff does not bar their claims because Defendants are not agents of FPL with respect to the Tariff and because Plaintiffs seek damages outside the scope of the Tariff's provisions. (See Resp. 5–16). Plaintiffs insist they have stated plausible claims for both negligence and gross negligence. (See id. 18–24).

A. FPL...