PHILADELPHIA – A Delaware County homeowner and his insurance company who alleged that his residence sustained significant fire damage after use of a pest repellent which he ordered from Amazon.com have ended their case.
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, 2023 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.
Amazon removed the action to the U.S. District Court for the Eastern District of Pennsylvania on July 17, 2023, 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.”
Amazon further answered the complaint on July 24, 2023 and denied liability for the subject events at issue.
“Plaintiffs’ complaint fails to set forth a claim upon which relief may be granted. Plaintiffs’ claims may be barred by the applicable statute of limitations. Plaintiffs’ damages, if any, were proximately caused by the acts and omissions of others over whom Amazon had no control or right of control. Said acts or omissions were the superseding and/or sole direct and proximate cause of plaintiffs’ damages, if any. The product described in plaintiffs’ complaint may have been improperly maintained and such improper maintenance, as may be demonstrated through subsequent discovery, was the cause of the incident described in the complaint. No act, or omission, or other liability producing conduct on the part of Amazon is a factual and/or legal cause of plaintiffs’ alleged injuries and/or damages, all such injuries and/or damages being otherwise denied,” the answer’s affirmative defenses stated.
“The alleged injuries and damages described in the complaint, all such injuries and/or damages being otherwise denied, were not the result of any act or omission on the part of Amazon nor the result of any breach of duty, if any, owed by Amazon. Amazon does not owe, nor has it owed or breached, any alleged duties to plaintiff, including, without limitation, any duty of reasonable care. If Amazon did owe a duty of care, Amazon did not breach said duty. Recovery is barred because of the abnormal use and/or unintended use and/or misuse of the product. To the extent plaintiffs’ claims against Amazon are based on third-party content, they are barred by the Communications Decency Act. Amazon is not liable to plaintiffs because Amazon did not design, manufacture, sell, supply, or distribute a dangerous or defective product and had neither actual nor constructive notice of any alleged danger or defect in the subject product, all allegations of any alleged defect and/or dangerous product being otherwise specifically denied.”
UPDATE
After the filing of an amended complaint on Nov. 8, 2023 and an answer to it from Amazon (which included a cross-claim against Shenzen Telic Electric Technology) on Nov. 22, 2023, nearly four more months of litigation ensued – before counsel for all parties filed a stipulation of dismissal with prejudice on March 18, which closed the case. It was not specified if a settlement had been reached.
“Pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, plaintiffs Palisades Property & Casualty Insurance, Co. (as subrogee of James Marchesano) and James Marchesano, and defendant Amazon.com, Inc., by and through their undersigned counsel, hereby stipulate and agree to dismiss all claims pending in this action, with prejudice, and with each party to bear its own costs and attorney’s fees. Pursuant to the stipulation, the parties request that the Court accordingly dismiss the action,” the stipulation stated.
The plaintiffs were represented by Michael J. Lorusso and Peter Schwenker of Dugan Brinkmann Maginnis & Pace, in Bala Cynwyd.
The defendants were represented by Erin Grewe, Kristin N. Ganderton and Ryan J. O’Neil, 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