Homesite Insurance Company v. Norcold, Inc. et al, No. 2:2021cv02167 - Document 66 (D. Nev. 2023)
Court Description: ORDER Granting 65 Stipulation to File Second Amended Complaint Pursuant to FRCP 15(a)(2). Signed by Magistrate Judge Daniel J. Albregts on 3/2/2023. (Copies have been distributed pursuant to the NEF - TRW)
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Homesite Insurance Company v. Norcold, Inc. et al Doc. 66 Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 1 of 17 1 2 3 4 5 6 7 Lilla Shkolnikov (SBN 219484) (admitted pro hac vice) GROTEFELD HOFFMANN LLP 700 Larkspur Landing Circle, Suite 280 Larkspur, California 94939 Telephone: 415.344.9670 Facsimile: 415.989.2802 Email: lshkolnikov@ghlaw-llp.com John T. Keating (Bar No. 6373) KEATING LAW GROUP 9130 W. Russell Rd. Suite 200 Las Vegas, NV 89148 Telephone: 702.228.6800 Email: jkeating@keatinglg.com 8 9 10 Attorneys for Plaintiff HOMESITE INSURANCE COMPANY as subrogee of Traci Marx and Raymond Marx 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOMESITE INSURANCE COMPANY as subrogee of Traci Marx and Raymond Marx, Plaintiff, ) ) ) ) ) v. ) ) NORCOLD, INC., THETFORD ) CORPORATION, CAMPING WORLD OF ) HENDERSON, CAMPING WORLD, INC., ) and DOES 1 through 50, Inclusive, ) ) ) Defendants. ) ) TRACI MARX, RAY MARX, ALYSSA ) DILLARD and SETH DILLARD, ) ) v. ) ) NORCOLD, INC., THETFORD CORPORATION, THE DYSON-KISSNER- ) ) MORAN CORPORATION, CAMPING ) WORLD HOLDINGS, INC., CAMPING ) WORLD, INC., CWI, INC., CAMPING WORLD OF HENDERSON, and DOES 1 to ) ) 50, inclusive, and ROE ENTITIES 1 to 50, ) inclusive ) Case No.: 2:21-cv-02167-RFB-DJA (Consolidated with Case No. 2:22-cv-00085JCM-EJY) STIPULATION TO FILE SECOND AMENDED COMPLAINT PURSUANT TO FRCP 15(a)(2); [PROPOSED] ORDER 1 Dockets.Justia.com Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 2 of 17 1 STIPULATION AND ORDER ALLOWING PLAINTIFF TO FILE SECOND AMENDED 2 COMPLAINT 3 Pursuant to FRCP 15(a)(2), Plaintiff, Homesite Insurance Company (“Plaintiff”) and 4 Defendants, Norcold LLC f/k/a Norcold, Inc., Thetford LLC f/k/a Thetford Corporation, 5 Camping World, Inc., Camping World of Henderson, and CWI, Inc. (collectively “Defendants”), 6 7 8 9 by and through their counsel of record, hereby submit this stipulation permitting Plaintiff to file its Second Amended Complaint as follows: WHEREAS on November 5, 2021, Plaintiff filed its Complaint for Property Damage in this action against Norcold, Inc., Thetford Corporation, Camping World, Inc., and Camping 10 11 12 13 14 World of Henderson; WHEREAS on October 12, 2022, Plaintiff filed a Stipulation and Order Allowing Plaintiff to file its First Amended Complaint for Property Damage naming CWI, Inc. as a defendant in this action based on Camping World’s representation that Camping World of 15 Henderson is a trade name of CWI, Inc.; whereas the Court granted Plaintiff leave to file its First 16 Amended Complaint on October 13, 2022; whereas Plaintiff filed its First Amended Complaint 17 on October 28, 2022 and defendants filed their answers to the First Amended Complaint; 18 WHEREAS Plaintiff seeks to file a Second Amended Complaint for Property Damage 19 naming Norcold LLC and Thetford LLC as defendants in this action based on information that 20 previously named defendants Norcold, Inc. and Thetford Corp. had converted into limited 21 liability companies; 22 23 24 25 26 WHEREAS a copy of Plaintiff’s Second Amended Complaint for Property Damage is attached hereto as Exhibit A; IT IS HEREBY STIPULATED, by and between Plaintiff and Defendants, through their respective counsel that Plaintiff should be granted leave to file the Second Amended Complaint for Property Damage, a copy of which is attached hereto as Exhibit A. 27 28 2 Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 3 of 17 1 GROTEFELD HOFFMANN LLP Dated: February 28, 2022 2 3 /s/ Lilla Shkolnikov Lilla Shkolnikov Attorneys for Plaintiff Homesite Insurance Company 4 5 6 7 8 HINSHAW & CULBERTSON LLP Dated: February 28, 2023 9 13 ______________________________ /s/ Russell S. Ponessa Russell S. Ponessa (Admitted Pro Hac Vice) Minnesota Reg. #169316 250 Nicollet Mall, Suite 1150 Minneapolis, MN 55401 14 AND 15 KRAVITZ, SCHNITZER, JOHNSON, WATSON & ZEPPENFELD, CHTD MARTIN J. KRAVITZ, ESQ. Nevada Bar No. 83 MICHAEL ESPOSITO, ESQ. Nevada Bar No. 13482 8985 S. Eastern Ave., Ste. 200 Las Vegas, NV 89123 10 11 12 16 17 18 19 20 Attorneys for Defendants CAMPING WORLD OF HENDERSON, CAMPING WORLD, INC. AND CWI, INC. 21 22 23 24 25 26 27 28 3 Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 4 of 17 1 2 COKINOS | YOUNG Dated: February 28, 2023 3 /s/ Mitchell R. Powell J. PARKER FAUNTLEROY, JR. Texas Bar No. 00790668 (Pro Hac Vice) MITCHELL R. POWELL Texas Bar No. 24091890 (Pro Hac Vice) 1221 Lamar Street, 16th Floor Houston, Texas 77010 4 5 6 7 AND 8 LEWIS BRISBOIS BISGAARD SMITH LLP DARRELL D. DENNIS, ESQ. Nevada Bar No. 6618 STEVEN B. ABBOTT, ESQ. Nevada Bar No. 10303 MICHAEL R. SMITH, ESQ. Nevada Bar No. 12641 6385 S. Rainbow Blvd., Ste. 600 Las Vegas, Nevada 89118 9 10 11 12 13 14 Attorneys for NORCOLD LLC f/k/a NORCOLD, INC. and THETFORD LLC f/k/a THETFORD CORPORATION 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 5 of 17 1 ORDER 2 3 4 5 The Court, having reviewed the foregoing Stipulation, and good cause appearing therefore: IT IS HEREBY ORDERED that Plaintiff Homesite Insurance Company is granted leave 6 to amend and file its Second Amended Complaint for Property Damage, a copy of which is 7 attached hereto as Exhibit “A.” 8 9 10 11 12 13 IT IS FURTHER ORDERED that Norcold LLC’s responsive pleading shall be due fourteen (14) days after the Second Amended Complaint is filed. IT IS FURTHER ORDERED that Thetford LLC’s responsive pleading shall be due fourteen (14) days after the Second Amended Complaint is filed. IT IS FURTHER ORDERED that the Second Amended Complaint is deemed filed as of the date this Order is transmitted via the CM/ECF system. 14 15 IT IS SO ORDERED. 16 17 18 19 March 2, 2023 DATED: _________________ ____________________________________ ____________________________________ DANIEL ALBREGTS UNITED J. STATES MAGISTRATE JUDGE UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 5 Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 6 of 17 EXHIBIT A Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 7 of 17 1 2 3 4 5 6 7 8 9 10 Lilla Shkolnikov (SBN 219484) admitted pro hac vice GROTEFELD HOFFMANN LLP 700 Larkspur Landing Circle, Suite 280 Larkspur, California 94939 Telephone: 415.344.9670 Facsimile: 415.989.2802 Email: lshkolnikov@ghlaw-llp.com John T. Keating (Bar No. 6373) KEATING LAW GROUP 9130 W. Russell Rd. Suite 200 Las Vegas, NV 89148 Telephone: 702.228.6800 Email: jkeating@keatinglg.com Attorneys for Plaintiff HOMESITE INSURANCE COMPANY as subrogee of Traci Marx and Raymond Marx 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOMESITE INSURANCE COMPANY as subrogee of Traci Marx and Raymond Marx, Plaintiff, ) ) ) ) ) v. ) ) ) NORCOLD, INC., NORCOLD LLC, THETFORD CORPORATION, THETFORD ) ) LLC, CAMPING WORLD OF HENDERSON, CAMPING WORLD, INC., ) CWI, INC. and DOES 1 through 50, Inclusive, ) ) Defendants. ) ) ) TRACI MARX, RAY MARX, ALYSSA ) DILLARD and SETH DILLARD, ) ) v. ) ) NORCOLD, INC., NORCOLD LLC, THETFORD CORPORATION, THETFORD ) ) LLC, THE DYSON-KISSNER-MORAN ) CORPORATION, CAMPING WORLD ) HOLDINGS, INC., CAMPING WORLD, INC., CWI, INC., CAMPING WORLD OF ) HENDERSON, and DOES 1 to 50, inclusive, ) ) and ROE ENTITIES 1 to 50, inclusive Case No.: 2:21-cv-02167-RFB-DJA (Consolidated with Case No. 2:22-cv-00085JCM-EJY) PLAINTIFF HOMESITE INSURANCE COMPANY’S SECOND AMENDED COMPLAINT 1 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 8 of 17 1 NOW COMES Plaintiff HOMESITE INSURANCE COMPANY, as subrogee of Traci 2 Marx and Raymond Marx, by and through its attorneys GROTEFELD HOFFMANN LLP and 3 for its Second Amended Complaint against Defendants NORCOLD, INC., NORCOLD LLC, 4 THETFORD CORPORATION, THETFORD LLC, CAMPING WORLD OF HENDERSON, 5 CAMPING WORLD, INC., CWI, INC., and DOES 1 through 50, inclusive, and allege that at 6 all pertinent times herein upon information and belief as follows: INTRODUCTION 7 8 9 1. Plaintiff’s insureds as a result of a fire caused by a defective Norcold branded refrigerator. THE PARTIES 10 11 This subrogation action is brought to recover damages sustained to the property of 2. Plaintiff HOMESITE INSURANCE COMPANY (hereinafter “HOMESITE” or 12 “Plaintiff”) was and is an insurance carrier duly licensed to conduct and transact business in the 13 State of Nevada as an insurance company during the relevant time periods alleged in this 14 Complaint. 15 3. At all relevant times herein, HOMESITE provided a policy of insurance to its 16 insured Traci Marx and Raymond Marx (hereinafter the “Insureds”) for their property located at 17 6040 Pooh Corner St., Las Vegas, Nevada (hereinafter the “Subject Property”). 18 4. Based on information and belief, Defendant NORCOLD, INC. is engaged in the 19 business of designing, manufacturing, marketing, distributing, selling and/or installing gas 20 absorption refrigerators, including the subject refrigerator at issue in this action, with corporate 21 headquarters located in Ann Arbor, Michigan and/or Sidney, Ohio. NORCOLD INC. is 22 authorized to transact business and is doing business in the State of Nevada. 23 5. Based on information and belief, Defendant NORCOLD LLC was and/or is 24 engaged in the business of designing, manufacturing, marketing, distributing, selling and/or 25 installing gas absorption refrigerators, with corporate headquarters located in Ann Arbor, 26 Michigan and/or Sidney, Ohio. Based on information and belief, NORCOLD LLC is authorized 27 to transact business and is doing business in the State of Nevada. 28 2 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 9 of 17 1 6. Based on information and belief, Defendant THETFORD CORPORATION 2 (hereinafter “THETFORD CORP.”) is engaged in the business of designing, manufacturing, 3 marketing, distributing, selling and/or installing products for recreational vehicles, including the 4 subject refrigerator at issue in this action, with corporate headquarters located in Ann Arbor, 5 Michigan. THETFORD CORP. is authorized to transact business and is doing business in the 6 State of Nevada. 7 7. Based on information and belief, Defendant THETFORD LLC was and/or is 8 engaged in the business of designing, manufacturing, marketing, distributing, selling and/or 9 installing products for recreational vehicles with corporate headquarters located in Ann Arbor, 10 Michigan. Based on information and belief, THETFORD LLC is authorized to transact business 11 and is doing business in the State of Nevada. 12 8. Based on information and belief, CAMPING WORLD OF HENDERSON is in 13 the business of selling, servicing, inspecting and/or maintaining recreational vehicles and 14 accessories, including the subject recreational vehicle and refrigerator at issue in this action. 15 CAMPING WORLD OF HENDERSON is located in Henderson, Nevada and sells and services 16 recreational vehicles and accessories at this location. 17 9. Based on information and belief, CAMPING WORLD, INC. is in the business of 18 selling, servicing, installing, inspecting and maintaining recreational vehicles and accessories, 19 including the subject recreational vehicle and accessories at issue in this action. CAMPING 20 WORLD, INC. is authorized to transact business and is doing business in the State of Nevada. 21 10. Based on information and belief, CWI, INC. is the seller, supplier, designer, 22 manufacturer and/or distributor of recreational vehicles and accessories, and was engaged in the 23 business of selling, servicing, inspecting and/or maintaining recreational vehicles, its 24 components and accessories. Defendant CWI, INC. is authorized to transact business and is 25 doing business in the State of Nevada. 26 11. Defendants DOES One (1) through Fifty (50), inclusive, are unknown to Plaintiff 27 who therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes 28 and thereon alleges that each of the Defendants designated herein as DOE is legally responsible 3 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 10 of 17 1 in some manner for the events and happenings referred to herein. Plaintiff will ask leave to 2 amend this Complaint when the true names and capacities of Defendants sued as DOES One (1) 3 through Fifty (50) are ascertained. 4 12. Plaintiff is informed and believes that at all pertinent times, NORCOLD, INC., 5 NORCOLD LLC, THETFORD CORP, THETFORD LLC, CAMPING WORLD OF 6 HENDERSON, CAMPING WORLD, INC., CWI, INC., and DOES One through Fifty were the 7 agents and employees of their co-Defendants and in doing the things alleged in this Complaint 8 were acting within the course and scope of that agency and employment. GENERAL ALLEGATIONS 9 13. 10 11 Holiday Rambler Endeavor recreational vehicle (hereinafter the “Subject RV”). 14. 12 13 The Subject RV contained a refrigerator branded under the name Norcold bearing Model number 1200 (hereinafter “NORCOLD REFRIGERATOR”). 15. 14 15 At all relevant times herein, Plaintiff’s Insureds were the owners of a 1999 Based on information and belief, the Subject RV was purchased at CAMPING WORLD OF HENDERSON. 16. 16 Based on information and belief, in or around December 2011, CAMPING 17 WORLD OF HENDERSON performed recall work on the NORCOLD REFRIGERATOR 18 pursuant to a notice of recall. 17. 19 On December 21, 2018, a fire erupted at the NORCOLD REFRIGERATOR 20 inside the Subject RV causing extensive damage to the Subject Property (hereinafter the 21 “Incident”). 18. 22 23 Pursuant to the terms of its policy, HOMESITE reimbursed its Insureds for the damages resulting from the subject fire. 19. 24 As a result of the Incident, HOMESITE was required to pay and did pay its 25 insureds moneys to repair the Subject Property and is subrogated thereto. HOMESITE’S 26 subrogated claim is at least $1,121,222.37. 27 /// 28 /// 4 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 11 of 17 1 FIRST CAUSE OF ACTION 2 (Strict product Liability against Defendants NORCOLD, INC., NORCOLD LLC, 3 THETFORD CORP., THETFORD LLC, CAMPING WORLD OF HENDERSON, 4 CAMPING WORLD, INC., CWI, INC. and DOES 1 to 25, and Each of Them) 5 20. 6 7 Plaintiff incorporates and re-alleges each of the paragraphs set forth above as though fully set forth herein. 21. At all pertinent times herein, Defendants NORCOLD INC., NORCOLD LLC, 8 THETFORD CORP., THETFORD LLC, CAMPING WORLD OF HENDERSON, CAMPING 9 WORLD, INC., CWI, INC. and DOES 1 to 25, and each of them, were in the business of 10 designing, manufacturing, assembling, installing, testing, inspecting, advertising, marketing, 11 distributing, selling and/or servicing products such as the NORCOLD REFRIGERATOR. 12 22. The NORCOLD REFRIGERATOR was expected to reach the general public and 13 consumers in the condition in which it was manufactured, designed, assembled, installed, tested, 14 inspected, distributed, marketed, merchandised, advertised, serviced, and sold. 15 23. Defendants, and each of them, knew or had reason to know that the purchaser and 16 user of the NORCOLD REFRIGERATOR would rely on the skill and judgment of Defendants, 17 and each of them, in their sale, design, manufacture, assembly, installation, testing, inspection, 18 distribution, and/or servicing of the NORCOLD REFRIGERATOR and its component parts, and 19 that such products would be used by consumers, including Plaintiff’s Insureds, without 20 inspection for defects. 21 24. Defendants, and each of them, had a duty to not sell, supply or install products, 22 including the NORCOLD REFRIGERATOR and/or its component parts, in a defective condition 23 that was unreasonably dangerous to foreseeable users when used in a reasonably expected 24 manner. 25 26 27 28 25. The NORCOLD REFRIGERATOR was distributed to, sold to and/or used by Plaintiff’s Insureds. 26. At all relevant times, Plaintiff’s Insureds used the NORCOLD REFRIGERATOR for its customary, normal, and foreseeable use. 5 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 12 of 17 1 2 27. The NORCOLD REFRIGERATOR was defective at the time it left Defendants’ control in one or more of the following ways: 3 a. The NORCOLD REFRIGERATOR was defective in its design in that it did not 4 perform safely and in fact failed; 5 b. The NORCOLD REFRIGERATOR was defectively designed to present an 6 unreasonable risk of fire danger; 7 c. The NORCOLD REFRIGERATOR contained manufacturing defects in that it 8 differed from the manufacturer’s design or specifications or from typical units 9 of the same product line, rendering the product unreasonably dangerous; 10 d. The NORCOLD REFRIGERATOR failed to properly and adequately warn 11 consumers of the fire hazards associated with its use; and 12 e. The NORCOLD REFRIGERATOR lacked proper and adequate instructions 13 14 and warnings as to its use, installation, and dangers. 28. Defendants, and each of them, failed to provide a safe product by failing to 15 properly design, manufacture, test, inspect, assemble, install, advertise, sell, service, distribute, 16 warn, recall, and/or take all other necessary reasonable precautions to prevent Plaintiff’s 17 damages. 18 29. Said defects, the failure to provide a safe product, and/or the failure take all other 19 necessary precautions to prevent such losses was the proximate cause of the fire and the damages 20 to the premises as alleged herein. 21 22 30. As a direct and proximate result of the defective NORCOLD REFRIGERATOR, HOMESITE incurred damages in the amount of at least $1,121,222.37. 23 SECOND CAUSE OF ACTION 24 (Negligence against Defendants NORCOLD, INC., NORCOLD LLC, THETFORD CORP., 25 THETFORD LLC, and DOES 1 to 25, and Each of Them) 26 27 28 31. Plaintiff incorporates and re-alleges each of the paragraphs set forth above as though fully set forth herein. 32. At all material times herein, Defendants NORCOLD, INC., NORCOLD LLC, 6 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 13 of 17 1 THETFORD CORP., THETFORD LLC, and DOES 1 through 25, and each of them, were under 2 a duty to exercise reasonable care to avoid exposing the Insureds and their real and personal 3 property to a foreseeable risk of harm. 4 33. It was the duty of Defendants, and each of them, through their agents and 5 employees, acting in the scope of their employment, to use such skill, prudence and diligence as 6 would a reasonably prudent manufacturer or as other members of their professions in the design, 7 manufacture, testing, installation, inspection, service and sale of the NORCOLD 8 REFRIGERATOR and/or its components parts. 9 34. Defendants, and each of them, knew or should have known that failure to properly 10 design, manufacture, test, assemble, inspect, install, service, market and/or sell the NORCOLD 11 REFRIGERATOR increased the risk of damage, including fire-related damage, from its use. 12 35. Further, Defendants, and each of them, knew or should have known that failure to 13 properly warn consumers of the risk of fire and damages associated with the use of the 14 NORCOLD REFRIGERATOR increased the risk of harm. 15 36. Defendants NORCOLD, INC., THETFORD CORP., NORCOLD LLC, 16 THETFORD LLC, and DOES 1 through 25 and each of them, through their agents and 17 employees, breached their respective duties by one or more of the following acts or omissions: 18 a. Failure to properly design the NORCOLD REFRIGERATOR; 19 b. Failure to properly manufacture the NORCOLD REFRIGERATOR; 20 c. Failure to properly assemble and/or install the component parts of the NORCOLD REFRIGERATOR; 21 22 d. 23 24 component parts for improper work; e. 25 26 Failure to properly test the NORCOLD REFRIGERATOR and/or its component parts; f. 27 28 Failure to properly inspect the NORCOLD REFRIGERATOR and/or its Failure to properly warn of any known risk associated with the use of the NORCOLD REFRIGERATOR, including the risk of fire; g. Failure to adequately recall and/or retrofit the defective NORCOLD 7 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 14 of 17 1 REFRIGERATOR; 2 h. 3 4 Failure to take other reasonable precautions against damage to the Subject Property. 37. The breaches of Defendants’ duties by them were a substantial factor in causing 5 HOMESITE’S damages because had Defendants, and each of them, used requisite care, there 6 would not have been fire damage to the Subject Property. 7 8 38. As a direct and proximate result of the defendants’ negligence, HOMESITE incurred damages in the amount of at least $1,121,222.37. THIRD CAUSE OF ACTION 9 10 (Negligence – Duty to Conduct Adequate Recall/Retrofit against Defendants NORCOLD, 11 INC., NORCOLD LLC, THETFORD CORP., THETFORD LLC, and DOES 1 to 25, and 12 Each of Them) 13 14 15 39. Plaintiff incorporates and re-alleges each of the paragraphs set forth above as though fully set forth herein. 40. Defendants NORCOLD, INC., THETFORD CORP., NORCOLD LLC, 16 THETFORD LLC and DOES 1 through 25, and each of them, were under a duty to conduct any 17 recall and/or retrofit campaigns of their gas absorption refrigerators, including the NORCOLD 18 REFRIGERATOR, with the degree of skill, prudence, and diligence that a reasonably careful 19 manufacturer and/or distributor or other members of their profession would use under like 20 circumstances. 21 41. Defendants, and each of them, knew or should have known that their gas 22 absorption refrigerators, including the NORCOLD REFRIGERATOR, were so defectively 23 designed, manufactured, supplied and/or installed as to be dangerous, or likely to be dangerous, 24 when used in a reasonably foreseeable manner. 25 42. Defendants, and each of them, breached their aforementioned duty by failing to 26 use reasonable care in initiating and conducting recall and/or retrofit campaigns which neither 27 eliminated the safety defects in their refrigerators, including the NORCOLD REFRIGERATOR, 28 nor rendered them safe to use for their reasonably foreseeable purpose. 8 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 15 of 17 1 43. The breaches of Defendants’ duties by them were a substantial factor in causing 2 HOMESITE’S damages because had Defendants, and each of them, used requisite care, there 3 would not have been fire damage to the Subject Property. 4 5 44. As a direct and proximate result of Defendants’ negligence, HOMESITE incurred damages in the amount of at least $1,121,222.37. FOURTH CAUSE OF ACTION 6 7 (Negligence against Defendants CAMPING WORLD OF HENDERSON, CAMPING 8 WORLD, INC., CWI, INC. and DOES 26 through 50) 9 10 11 45. Plaintiff incorporates and re-alleges each of the paragraphs set forth above as though fully set forth herein. 46. At all times material herein, it was the duty of Defendants CAMPING WORLD 12 OF HENDERSON, CAMPING WORLD, INC., CWI, INC. and DOES 26 through 50, inclusive, 13 through their agents and employees acting in the scope of their employment, to use due care and 14 caution for the safety of Plaintiff’s insureds and to take reasonable precautions for the protection 15 of Plaintiff’s insureds’ property. 16 47. It was the duty of Defendants, and each of them, through their agents and 17 employees, acting in the scope of their employment, to use such skill, prudence, and diligence as 18 a reasonably prudent supplier or distributor or as other members of their professions in the sale, 19 inspection, service and/or maintenance of the Subject RV and the NORCOLD 20 REFRIGERATOR. 21 48. Defendants CAMPING WORLD OF HENDERSON, CAMPING WORLD, INC., 22 CWI, INC., and DOES 26 through 50, and each of them, breached their aforementioned duties 23 by one or more of the following acts and omissions: 24 a. REFRIGERATOR; 25 26 b. Failure to train its employees to properly service and/or maintain the NORCOLD REFRIGERATOR; 27 28 Failure to properly service and/or maintain the NORCOLD c. Failure to properly inspect and test the NORCOLD REFRIGERATOR; 9 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 16 of 17 1 d. 2 REFRIGERATOR; 3 e. 4 Failure to properly warn of any known risk associated with the use of the NORCOLD REFRIGERATOR and/or its component parts. 5 f. 6 7 Failure to properly perform the recall fix to the NORCOLD Failure to take other reasonable precautions against damage to the Subject Property. 49. The breaches of Defendants’ duties by them were a substantial factor in causing 8 HOMESITE’S damages, because had Defendants, and each of them, used requisite care, there 9 would not have been fire damage to the Subject Property. 10 11 50. As a direct and proximate result of DEFENDANTS’ negligence, HOMESITE incurred damages in the amount of at least $1,121,222.37. 12 13 14 WHEREFORE, Plaintiff HOMESITE prays for judgment against NORCOLD, INC., NORCOLD LLC, THETFORD CORP., THETFORD LLC, CAMPING WORLD OF 15 HENDERSON, CAMPING WORLD, INC., CWI, INC., and DOES 1 to 50, and each of them as 16 set forth below. 17 18 a. For monetary damages in an amount to be proven at trial, which may exceed $1,121,222.37; 19 b. For prejudgment interest in accordance with applicable law; 20 c. For post judgment interest; 21 d. For attorneys' fees and cost of suit where allowable by law; and 22 e. For such other relief as the Court deems just and proper. 23 24 25 26 27 Dated: February 26, 2022 GROTEFELD HOFFMANN LLP ___________________________________ Lilla Shkolnikov Attorneys for Homesite Insurance Company 28 10 PLAINTIFF’S SECOND AMENDED COMPLAINT Case 2:21-cv-02167-RFB-DJA Document 66 65 Filed 03/02/23 02/28/23 Page 17 of 17 1 CERTIFICATE OF SERVICE 2 Homesite Insurance Company v. Norcold, Inc., et al. USDC DISTRICT OF NEVADA CASE NO. 2:21-cv-02167-RFB-DJA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I hereby certify that on this 28th day of February, I served a true and correct copy of the following document, STIPULATION TO FILE SECOND AMENDED COMPLAINT PURSUANT TO FRCP 15(a)(2); [PROPOSED] ORDER; PLAINTIFF HOMESITE INSURANCE COMPANY’S SECOND AMENDED COMPLAINT on all counsel of record as follows: Attorneys for Defendants Norcold, Inc. and Thetford Corporation Attorneys for Defendant Camping World of Henderson and Camping World, Inc. Steven B. Abbott Lewis Brisbois Bisgaard & Smith LLP 6385 S. Rainbow Boulevard Suite 600 Las Vegas, NV 89118 Tel: (702) 893.3383 Fax: (702) 893-3789 Email: steven.abbott@lewisbrisbois.com Martin J. Kravitz Michael R. Esposito Kravitz Schnitzer Johnson Watson & Zeppenfeld, CHTD. 8985 S. Eastern Avenue Suite 200 Las Vegas, NV 89123 Tel: (702) 362-6666 Fax: (702) 362-2203 Email: mkravitz@ksjattorneys.com Email: mesposito@ksjattorneys.com Mitchell Powell Cokinos | Young Four Houston Center 1221 Lamar 16th Floor Houston, TX 77010 Tel: (713) 535-5500 Fax: (713) 535-5533 Email: mpowell@cokinoslaw.com Russell S. Ponessa (Admitted Pro Hac Vice) Hinshaw & Culbertson LLP 333 South Seventh Street Suite 2000 Minneapolis, MN 55402 Tel: (612) 333-3434 Fax: (612) 334-8888 Email: rponessa@hinshawlaw.com 18 19 20 Attorneys for Plaintiffs Traci Marx and Raymond Marx and Alyssa Dillard and Seth Dillard Attorneys for Plaintiffs Traci Marx and Raymond Marx and Alyssa Dillard and Seth Dillard Terrence A. Beard Law Offices of Terrence A. Beard P.O. Box 1599 Sutter Creek, CA 95685 Tel: (925) 778-1060 Fax: Email: tbeard1053@aol.com Donald H. Williams Williams | Starbuck 612 So. Tenth Street Las Vegas, NV 89101 Tel: (702) 320-7755 Fax: (702) 320-7760 Email: dwilliams@dhwlawlv.com 21 22 23 24 25 26 27 28 EXECUTED ON February 28, 2023 Emily Hallinan 1 PROOF OF SERVICE
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