PHILADELPHIA – Amazon has removed to federal court an action from a Delaware County homeowner and insurance company, which alleged that his residence sustained significant fire damage after use of a pest repellent which he ordered from the company.
Palisades Property & Casualty Insurance Company (as subrogee of James Marchesano) of Boston and James Marchesano of Secane first filed suit in the Delaware County Court of Common Pleas on June 8 versus Amazon.com, Inc. (c/o Corporation Service Company) of Seattle, Wash. and John Doe Manufacturer.
“At all times material hereto, plaintiff James Marchesano owned and resided at a property located at 844 Wyndom Terrace, Secane, PA 19018, hereafter the ‘subject property.’ At all times material hereto, Palisades provided property insurance to Marchesano which covered physical and consequential damages sustained at the subject property,” the suit stated.
“Defendant Amazon is a highly sophisticated technology company that operates the world’s largest e-commerce website. Defendant Amazon recommends certain products to its customers based off of algorithmic interpretations of data gathered on its site and elsewhere as to those products’ marketability to individual shoppers.”
The suit continued that on or about Oct. 22, 2018, Marchesano purchased a 6-pack of the Pest Repellent directly from Amazon on its Amazon.com website, under Order No. 112-3722453-5749014.
“Following receipt of the pest repellent, Marchesano plugged one of them into an outlet located in the kitchen of his residence at the subject property. On June 25, 2021, the pest repellent ignited internally and burned causing a fire that spread from the pest repellent to the wall and ceiling of the kitchen, and ultimately throughout the subject property. As a result of the fire, plaintiffs sustained significant damages to his property along with other incidental and consequential damages,” the suit said.
“Pursuant to his policy of insurance, Palisades was required to and has paid to or on behalf of James Marchesano an amount in excess of the arbitration limits of this court for damages caused by the fire and has become legally, equitably, and contractually subrogated to the rights of Marchesano to the extent of subject payments. Pursuant to his policy of insurance, Marchesano also sustained uninsured damages as a result of the fire including, but not limited to, the applicable deductible.”
According to the suit, the defendants designed and manufactured, distributed and sold the subject pest repellent with defects in design which made them unreasonably dangerous and unsafe for their intended and reasonably foreseeable use, in that they could ignite and start a fire.
UPDATE
Amazon removed the action to the U.S. District Court for the Eastern District of Pennsylvania on July 17, pointing to the diversity of citizenship among the parties and the amount of damages in question.
“As alleged in the complaint, Marchesano resides in Secane, Pennsylvania. Therefore, Marchesano is a citizen of Pennsylvania. For diversity purposes, a corporation is deemed a citizen of its state of incorporation and of the state where it has its principal place of business. As alleged in the complaint, Palisades is incorporated under the laws of Massachusetts, with its principal place of business in Massachusetts. Therefore, Palisades is a citizen of Massachusetts. Defendant Amazon.com, Inc. is incorporated under the laws of Delaware, and its principal place of business is in Washington. Therefore, Amazon.com, Inc. is a citizen of Delaware and Washington. Because plaintiffs are citizens of Pennsylvania and Massachusetts, while Amazon is a citizen of Delaware and Washington, complete diversity exists,” per the removal notice.
“Under 28 U.S.C. Section 1332(a), in a case where federal jurisdiction is based upon diversity of citizenship, the amount in controversy must exceed $75,000, exclusive of costs and interest. Although plaintiffs do not quantify their exact damages, plaintiffs allege Palisades ‘was required to and has paid to or on behalf of James Marchesano’ an amount in excess of the applicable Pennsylvania arbitration limits – i.e., an amount in excess of $50,000. Plaintiffs further allege that, in addition to any amounts claimed by Palisades with respect to insured damages, Marchesano separately is entitled to recover for ‘uninsured damages,’ which include but are not limited to, his applicable deductible. Additionally, plaintiffs allege the subject fire ‘spread from the Pest Repeller to the wall and ceiling of the kitchen, and ultimately throughout the subject property.’ Therefore, a fair reading of the complaint establishes a reasonable probability that plaintiffs are alleging damages in excess of $75,000.”
For two counts of strict products liability – design defect, the plaintiffs are seeking damages in excess of $50,000, exclusive of interest, cost, counsel fees, and damages for delay as provided by law, and further relief as the Court may deem just and reasonable.
The plaintiffs are represented by Samuel J. Pace and Michael J. Lorusso of Dugan Brinkmann Maginnis & Pace, in Bala Cynwyd.
The defendants are represented by Ryan J. O’Neil and Kristin N. Ganderton of Campbell Conroy & O’Neil, in Berwyn.
U.S. District Court for the Eastern District of Pennsylvania case 2:23-cv-02719
Delaware County Court of Common Pleas case CV-2023-004832
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com