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Anderson v. USAA Casualty Insurance Co.

April 23, 2004

CAROL A. ANDERSON, PLAINTIFF,
v.
USAA CASUALTY INSURANCE COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No.: 38

MEMORANDUM OPINION GRANTING DEFENDANT TEG'S MOTION TO DISMISS AND GRANTING THE PLAINTIFF LEAVE TO AMEND THE COMPLAINT

I. INTRODUCTION

This toxic-tort case comes before the court on defendant The Environmental Group's ("TEG") motion to dismiss the plaintiff's claim of negligent misrepresentation pursuant to Federal Rules of Civil Procedure 9(b) and 12(b)(6). Defendant TEG believes that the plaintiff's complaint is missing something important. The court agrees. Because the plaintiff fails to plead her claim of negligent misrepresentation with Rule 9(b)'s requisite particularity, the court grants defendant TEG's motion to dismiss that claim. The court, however, will not allow the sun to set on the plaintiff's claim without offering her a chance to cure her pleading deficiencies. Toward that end, the court grants the plaintiff leave to amend her complaint.

II. BACKGROUND *fn1

A. Factual Background

In May 1999, the plaintiff entered into purchase agreements with the Millennium defendants for two newly-constructed units in the Ritz-Carlton Residences, which later were combined into one unit ("the unit"). Am. Compl. ("Compl.") ¶¶ 17-18. The plaintiff began to occupy the unit in January 2001, after which time she began experiencing "a variety of flu-related symptoms, such as nasal congestion, burning eyes and fatigue." Id. ¶¶ 24-25. The plaintiff maintains that she had no known history of such health problems before she resided in the unit, and that her symptoms would subside whenever she left the premises. Id. ¶ 25.

In February 2002, black-colored mold became visible along the walls of the unit. Id. ¶ 34. From February through May 2002, defendant NuChemCo, Inc. ("NuChemCo") performed air-quality tests that revealed additional mold throughout the unit. Id. ¶ 39. The Millennium defendants contracted defendant TEG, a purveyor of environmental investigation and remediation *fn2 services, to perform the remediation of mold-contaminated areas throughout the building. Id. ¶¶ 11, 76.

On June 25, 2002, defendant NuChemCo issued a report to the plaintiff stating that remediation of the unit was complete. Id. ¶ 42. In addition, a representative of defendant Millennium Partners indicated that it was safe for the plaintiff to reinhabit the premises. Id. Despite the green light from defendants Millennium Partners and NuChemCo, the plaintiff allegedly continued to suffer health problems upon her reoccupation of the unit. Id. ¶ 43. In fact, her health apparently further deteriorated as she experienced "severe headaches, blurred vision, difficulty breathing, coughing, congestion, nausea, vomiting, diarrhea, swelling and cognitive deficiencies." Id. ¶ 44. The plaintiff attributes her maladies to various toxic molds growing within the walls of the building as a result of "serious and reoccurring leaks and flooding" that took place during construction. Id. ¶¶ 74-75. The plaintiff's doctor ordered her to move out of the unit, and she has not returned since her departure. Id. ¶ 47.

In August 2002, the plaintiff received another report from defendant NuChemCo, this time indicating the presence of toxigenic fungi in the unit. Id. ¶ 50. Remediation of the plaintiff's unit continued thereafter. Id. ¶ 72.

B. Procedural History

On November 14, 2002, the plaintiff filed her original complaint, premising the case on diversity jurisdiction. On June 6, 2003, she filed a motion to amend her complaint. On September 29, 2003, the court granted the plaintiff leave to file her amended complaint. Anderson v. USAA Cas. Ins. Co., 218 F.R.D. 307 (D.D.C. 2003). While the amended complaint alleges a host of contract, tort, and statutory claims against the defendants, it names only two claims against defendant TEG: negligence and negligent misrepresentation. Compl. ¶¶ 158-71. With respect to her negligent-misrepresentation claim, the plaintiff contends that the defendants, including defendant TEG, falsely represented to her that the condominium building posed no health hazards. Id. ¶ 169. She also believes that they failed to disclose the building's severe construction defects and widespread water damage that only later became evident upon discovery of toxic mold in several areas of the building. Id. Consequently, the plaintiff's alleged reliance on such misrepresentations and omissions exposed her to mold contamination, which in turn caused her to suffer "serious and ongoing personal injury and property damage." Id. ¶ 171.

On October 9, 2003, defendant TEG filed a motion to dismiss the plaintiff's claim of negligent misrepresentation pursuant to Rules 9(b) and ...


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