Factor Mutual Insurance Company v. Southwest Pumps LLC — Entry #87: Memorandum Opinion and Order granting 62 MOTION for Leave to File to Designate Responsible Third Parties filed by Southwest Pumps LLC

Case 3:23-cv-02728-B          Document 87         Filed 01/23/25       Page 1 of 4      PageID 670


                             UNITED STATES DISTRICT COURT
                              NORTHERN DISTRICT OF TEXAS
                                   DALLAS DIVISION

 FACTORY MUTUAL INSURANCE                          §
 COMPANY,                                          §
                                                   §
      Plaintiff,                                   §
                                                   §
 v.                                                §   CIVIL ACTION NO. 3:23-CV-2728-B
                                                   §
 SOUTHWEST PUMPS, LLC, and                         §
 AMERICAN FIRE PROTECTION                          §
 GROUP, INC.,                                      §
                                                   §
      Defendants.                                  §

                             MEMORANDUM OPINON & ORDER

         Before the Court is Defendant Southwest Pumps, LLC (“SW Pumps”)’s Motion for Leave

to Designate Responsible Third Parties (Doc. 62). For the following reasons, the Court GRANTS

SW Pumps’s Motion.

         Plaintiff Factory Mutual Insurance Company (“Factory Mutual”) brought this lawsuit against

Defendants SW Pumps and American Fire Protection Group, Inc. (“AFPG”) after a building owned

by Factory Mutual suffered damages. Doc. 12-2, Pet., ¶¶ 21–25. AFPG hired SW Pumps to provide

fire sprinkler inspections at Factory Mutual’s building. Id. ¶ 12. Factory Mutual alleges that the fire

sprinklers broke, causing damages to the building. Id. ¶¶ 14–17. SW Pumps filed a Motion seeking

to designate two responsible third parties. Doc. 62, Mot., 2. Specifically, it seeks to designate

FirstService Residential, Inc. (“FSR”) and CBRE, Inc. (“CBRE”) as responsible third parties, arguing

that they were negligent in monitoring and supervising repairs to the sprinkler system. See id.

         Federal courts apply Texas Civil Practice and Remedies Code § 33.004 in federal diversity

cases in which a defendant seeks to designate a responsible third party. Hernandez v. Bumbo (Pty.)

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Ltd., No. 3:12-CV-1213-M, 2014 WL 924238, at *1 (N.D. Tex. Mar. 10, 2014) (Lynn, J.). Under this

provision, defendants “may seek to designate a person as a responsible third party by filing a [timely]

motion for leave to designate that person as a responsible third party.” TEX. CIV. PRAC. & REM.

CODE § 33.004(a). The statute defines “responsible third party” as a third party

       alleged to have caused or contributed to causing in any way the harm for which recovery of
       damages is sought, whether by negligent act or omission, by any defective or unreasonably
       dangerous product, by other conduct or activity that violates an applicable legal standard, or
       by any combination of these.

Id. § 33.011(6).

       Courts “shall grant leave to designate the named person as a responsible third party unless

another party files an objection to the motion for leave on or before the 15th day after the date the

motion is served.” Id. § 33.004(f). Courts are instructed to grant leave unless the objecting party

establishes that the defendant failed to “plead sufficient facts concerning the alleged responsibility

of the person to satisfy” Texas’s pleading requirements. Id. § 33.004(g)(1).

       Texas’s “‘fair notice’ standard for pleading . . . looks to whether the opposing party can

ascertain from the pleading the nature and basic issues of the controversy and what testimony will

be relevant.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). The fair notice

pleading standard is intended “‘to give the opposing party information sufficient to enable him to

prepare a defense.’” Id. at 897 (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).

       The Court GRANTS SW Pumps’s Motion to designate FSR and CBRE as third parties. SW

Pumps pleaded sufficient facts concerning the alleged responsibility of FSR and CBRE. See

Horizon/CMS Healthcare Corp., 34 S.W.3d at 896. Factory Mutual alleges that both CBRE and FSR

were responsible for the maintenance of Factory Mutual’s building. Doc. 62, Mot., 4–5. SW Pumps

alleges that CBRE and FSR had a duty to assess whether the system was properly installed and

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maintained and that they failed to do so. Id. at 7. SW Pumps further alleges that neither CBRE nor

FSR took action after learning about issues with the sprinkler system. Id. at 6–7. SW Pumps argues

that by failing to take appropriate preventative maintenance measures and by failing to adequately

supervise, CBRE and FSR caused Factory Mutual’s injuries. Id. at 10. Accordingly, SW Pumps

alleged that CBRE and FSR owed a duty of care to Factory Mutual, breached their duty of care, and

that the breach was a proximate cause of Factory Mutual’s injuries. SW Pumps thus alleged sufficient

information to enable Factory Mutual to a prepare a defense against SW Pumps’s negligence

arguments. Factory Mutual can ascertain from these allegations “the nature and basic issues of the

controversy and what testimony will be relevant.” See Horizon/CMS Healthcare Corp., 34 S.W.3d at

897.

       Factory Mutual did not establish that SW Pumps failed to “plead sufficient facts concerning

the alleged responsibility of the” third party. See TEX. CIV. PRAC. & REM. CODE § 33.004(g)(1).

Factory Mutual argues that the allegations “are not true” and introduces evidence in its Response to

argue that that the Court should not grant leave to designate FSR and CBRE. Doc. 78, Resp., 5–9.

But when determining whether to grant leave to designate a responsible third-party, the Court does

not consider evidence or investigate the allegations supporting the request. In re Arthur Andersen LLP,

121 S.W.3d 471, 478 n.20 (Tex.Civ.App.—Houston [14th Dist.] 2003, orig. proceeding). The

question is whether the allegations in SW Pumps’s Motion adequately put Factory Mutual on notice

of the issues to be tried. See Horizon/CMS Healthcare Corp., 34 S.W.3d at 896. SW Pumps has

satisfied this requirement.

       Factory Mutual also argues that FRS and CBRE cannot be designated as responsible third

parties “to the extent [they] acted as agents of [Factory Mutual’s] subrogor.” Doc. 78, Resp., 10.


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Factory Mutual is mistaken. Texas law permits agents to be designated as responsible third parties.

See Sustainable Modular Mgmt., Inc. v. Travelers Lloyds Ins. Co., No. 3:20-CV-1883, 2021 WL 4943692,

at *3 (N.D. Tex. Oct. 22, 2021) (Fitzwater, J.) (citing In re Coppola, 535 S.W.3d 506 (Tex. 2017)).

And an agent can be responsible for negligent acts within the scope of its agency. See Fleming v. Lon

Morris College, 85 S.W.2d 276, 279 (Tex. App.—El Paso 1935, writ ref’d). Thus, Factory Mutual did

not establish that SW Pumps failed to plead sufficient facts concerning the alleged responsibility of

FSR and CBRE. Defendant SW Pumps’s Motion is GRANTED.

       SO ORDERED.

       SIGNED: January 23, 2025.


                                              JANE J. BOYLE
                                              UNITED STATES DISTRICT JUDGE


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