PITTSBURGH – Black & Decker is seeking the entry of a confidential protective order to protect its business information, in a case alleging that it is responsible for a home construction fire that caused $5 million in damages.
USAA Casualty Insurance Company (as subrogee of James Luketich) of San Antonio, Texas, first filed suit in the Allegheny County Court of Common Pleas on Dec. 18 versus Stanley Black & Decker, Inc. of New Britain, Conn. and Joshua Otterbeck (doing business as “Otterbeck Construction”), of Sarver.
At the time of the events in question, USAA insured both Luketich’s property and vehicle, and Otterbeck was performing construction at Luketich’s home.
“On or about Feb. 7, 2019, defendant Otterbeck was performing construction work at the property which included installing wood siding on the garage. After completing its work at the property for the day, defendant Otterbeck stored its tools, including several battery operated Porter Cable tools, in rubber totes that were stored behind the garage at the property,” the suit stated.
“On or about Feb. 8, 2019, a fire started inside one of Otterbeck’s totes as a result of the failure of a Porter Cable battery pack. The fire spread to the property resulting in significant damages. At the time of the fire, there was a 2018 Tesla Model X and 2016 Mercedes Benz GLE parked in the garage at the property. Both of the aforementioned vehicles were destroyed as a result of the fire.”
The battery was designed, manufactured and/or supplied by defendant Stanley Black & Decker, and was purchased by defendant Otterbeck prior to Feb. 8, 2019 in the Commonwealth of Pennsylvania.
“Pursuant to the terms of the property policy, plaintiff USAA has made payments to or on behalf of its insured in an amount in excess of $5,000,000 for damages resulting from the fire,” per the suit.
“Pursuant to the terms of the auto policy, plaintiff USAA made payments to or on behalf of its insured in the amount of $156,763.38 for damages related to the Tesla and $80,312.28 for damages relating to the Mercedes.”
Stanley Black & Decker, Inc. filed an answer to the lawsuit denying its content on Feb. 2, along with providing both new matter and a cross-claim against its co-defendant, Otterbeck.
“The complaint fails to state a cause of action against SBD upon which relief can be granted. The claims of plaintiffs may be barred in whole or in part by the provisions of the Pennsylvania Comparative Negligence Act, 42 Pa.C.S.A. Section 7102. The claims of plaintiffs may be barred in whole or in part by the applicable statute(s) of limitations,” the new matter said.
“The claims of plaintiffs may be barred by the doctrine of assumption of the risk. The claimed damages of plaintiffs may have been caused or contributed to by the acts and/or omissions of third-parties over whom SBD exercised no control. SBD did not commit any act or omission that was a proximate cause of plaintiff’s claimed injuries and/or damages. SBD did not design, manufacture, assemble, distribute, supply, sell or otherwise place the battery described in plaintiff’s complaint into the stream of commerce.”
As to the cross-claim, the company asserted that Otterbeck is alone and solely liable to the plaintiffs.
UPDATE
On May 17, counsel for Black & Decker filed a praecipe seeking the entry of a confidential protective order, as to its commercial proprietary information during the pendency of the action.
“Plaintiff and defendants possess certain confidential and/or proprietary information, such as, without limitation, engineering, detail and assembly drawings, and similar technical information, which contains proprietary and/or competitively sensitive information (such as design and/or material specifications, tolerances and other similar information), that may be disclosed to the other parties to the above-captioned action in response to various discovery requests,” the praecipe said.
“The parties wish to insure any such confidential information shall not be used for any purpose other than this lawsuit and shall not be made public by any of the parties to this action or be otherwise disseminated by the parties except as set forth in this protective and confidentiality order.”
The praecipe designated that all confidential information will be assigned Bates numbers and properly categorized and maintained.
“All confidential information produced by a party in this litigation shall be securely maintained. Distribution of or access to any such confidential information shall occur only in strict accordance with the terms of this Order. Immediately after entry of final judgment, settlement or dismissal in connection with this action, counsel for the other parties shall return to the producing party all documents and things or transcripts of depositions which have been designated as ‘confidential’ pursuant to this order,” the praecipe stated, in part.
For counts of strict product liability and negligence, the plaintiff is seeking damages in excess of $5,000,000, exclusive of interest and costs.
The plaintiff is represented by Eugene A. Giotto, Daniel J. Luccaro and Sean P. O’Donnell of Cozen O’Connor, in Pittsburgh and Philadelphia.
The defendants are represented by Robert J. Hafner of Goldberg & Segalla in Philadelphia, plus Andrew D. Sysak of Andracki Sysak & Artman, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-20-012776
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com