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Rosemary Whelchel, Special Administrator of the Estate of Robert v. Briggs & Stratton Corporation

February 7, 2012

ROSEMARY WHELCHEL, SPECIAL ADMINISTRATOR OF THE ESTATE OF ROBERT WHELCHEL, DECEASED, PLAINTIFF,
v.
BRIGGS & STRATTON CORPORATION, A CORPORATION; BRIGGS & STRATTON POWER PRODUCTS GROUP, LLC, A CORPORATION; FERRIS INDUSTRIES, INC., A CORPORATION; AND PEORIA MIDWEST EQUIPMENT, INC., A CORPORATION DEFENDANTS.



The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge

Honorable Judge Rebecca Pallmeyer

MEMORANDUM OPINION AND ORDER

On August 13, 2009, Robert Whelchel ("Decedent") was killed when the riding lawn mower he was operating rolled over into a ditch and pinned him beneath it, asphyxiating him. Plaintiff Rosemary Whelchel, Decedent's wife, filed this action in the Circuit Court of Cook County against Defendant Peoria Midwest Equipment, Inc. ("Peoria Midwest"), the equipment dealer that sold the mower to her husband in used condition, and Defendants Briggs & Stratton Corp., Briggs & Stratton Power Products Group, LLC, and Ferris Industries, Inc. (collectively "Briggs"), the manufacturer of the mower and its parent entities. Plaintiff brings survivorship and wrongful death causes of action premised on theories of strict liability and negligence.

Briggs removed the case to federal court, claiming complete diversity between Plaintiff, a resident of Illinois, and the Briggs Defendants. Although Peoria Midwest is incorporated under the laws of Illinois and has its principal place of business in Peoria, Illinois, Defendants contend that Peoria Midwest is fraudulently joined because it is shielded from liability by the Illinois "Distributor Statute," 735 ILCS 5/2-621, and because Plaintiff has no cause of action for strict liability or negligence against the seller of a used mower. For these reasons, Peoria Midwest moves to dismiss the claims against it. Briggs has also moved to transfer venue to the U.S. District Court for the Central District of Illinois on forum non conveniens grounds. Plaintiff moves that the case be remanded to state court. For the reasons stated below, the court concludes that it lacks jurisdiction, and therefore remands this case to state court.

FACTS

Plaintiff Whelchel is a resident of Illinois. Defendant Briggs & Stratton Corp. is incorporated under the laws of Wisconsin and has its principal place of business in Wisconsin. (Heath Aff. ¶ 4, Ex. B to Briggs Mem. in Supp. of Removal to the U.S. District Ct. for the N.D. of Ill., Eastern Division (hereinafter "Briggs' Removal Mem.").) Defendant Briggs & Stratton Power Products Group, LLC is a limited liability company organized under the laws of Delaware with its principal place of business in Wisconsin; Defendant Briggs has not identified the members of the LLC but has alleged that the LLC is a wholly owned subsidiary of Briggs and Stratton Corp. (Id. ¶¶ 3, 5.) Briggs asserts that Defendant Ferris Industries, Inc. is in fact a brand name of Briggs & Stratton Power Products Group. (Id. ¶ 6; Briggs Removal Mem. at 2.) The court notes that Ferris' plant appears to be located in New York. (Wildermuth Dep., Ex. 1 to Def. Peoria Midwest's Reply in Supp. of It's [sic] Mot. to Dismiss Counts III, IV, VI and VII of Pl.'s First Am. Compl. at Law (hereinafter "Peoria Midwest's Reply"), at 35, 100-01.) For purposes of this ruling, the court concludes that the Briggs Defendants are diverse in citizenship from Plaintiff. The Briggs Defendants manufacture the Ferris line of mowers, including the Ferris IS1500 Z at issue in this case. (Heath Aff. ¶ 7.)

Defendant Peoria Midwest is incorporated in Illinois (Wildermuth Aff. ¶ 4, Ex. C. to Briggs' Removal Mem.), and has its principal place of business in Peoria, Illinois. (Wildermuth Dep. at 18.) Robert Wildermuth is the co-owner and President of Peoria Midwest. (Wildermuth Aff. ¶ 3; Wildermuth Dep. at 16.) Peoria Midwest "is in the business of selling new and used outdoor power equipment," including the Ferris line of lawn mowers. (Wildermuth Aff. ¶ 5.) Indeed, Peoria Midwest is an authorized dealer of Ferris mowers, meaning that Peoria Midwest sells and supplies parts for that equipment. (Wildermuth Dep. at 8.) To maintain that status, on an annual basis Peoria Midwest staff attend service schools and sales and training seminars conducted by Ferris representatives. (Id.) At these training sessions, Peoria Midwest representatives receive handouts, CDs, videos, and other materials that show the "features and benefits of new equipment." (Id. at

10.) Additionally, Wildermuth and other Peoria Midwest employees attend an annual power equipment trade show in Louisville, Kentucky, where they meet with Ferris representatives, including Ferris engineers, to "[s]ee what's new on the market [and] talk to [the] manufacturers that [they] deal with." (Id. at 34.) Wildermuth testified that he has "built up relationships" with people at Ferris over the years, and has in fact visited the Ferris factory in New York on three separate occasions. (Id. at 35.)

On March 11, 2009, Decedent purchased the Ferris ZTR, Model IS1500 Z, KAV2148, Serial No. 199 mower in used condition from Peoria Midwest. (Pl.'s First Am. Compl. at Law (hereinafter "First Am. Compl."), at Count I ¶¶ 2-3.) Wildermuth described that model as a "heavy duty homeowner machine" that is also commercial-grade. (Wildermuth Dep. at 81-82.) According to an affidavit submitted by a Briggs product safety and compliance engineer, the mower was manufactured in January 2005. (Butler Aff. ¶ 4, Ex. to Briggs' Reply Brief in Supp. of Peoria Midwest's Mot. to Dismiss Counts II, IV and VI of Pl.'s Am. Compl. and in Opp. to Pl.'s Mot. to Remand (hereinafter "Briggs' Reply").) Peoria Midwest acquired the mower through a trade-in when another customer purchased a newer model in approximately February 2009. (Wildermuth Dep. at 45.) Wildermuth testified that due to a computer failure that destroyed earlier records, Peoria Midwest cannot determine the identity of that earlier customer or whether that customer had originally purchased the mower from Peoria Midwest. (Id. at 47-48.)*fn1 Before selling the used mower to Decedent, Peoria Midwest performed a "standard service." (Id. at 72.) According to Wildermuth, the mower was in good working condition and an inspection revealed no problems. (Id. at 46-47, 72.)

Wildermuth admits that he knew the mower did not have a roll bar or a seat belt, which, in other mowers, form what is referred to as a Roll Over Protection Structure ("ROPS"). (Id. at 47, 71.) According to Wildermuth, Peoria Midwest did not begin selling Ferris mowers with ROPS as standard equipment until approximately 2009, although he acknowledged that ROPS was an optional feature on some of the Ferris models that Peoria Midwest carried prior to that. (Id. at 20-21.) According to Briggs, however, at the time it manufactured the mower in question, the Ferris IS1500 Z did not come equipped with ROPS, nor was ROPS an option. (Butler Aff. ¶ 4.) Consequently, the dealer instruction manual that applies to Decedent's model number makes no mention of roll bar assembly. (Dealer Setup & Adjustment Instructions, Ex. B to Butler Aff.)*fn2 ROPS did not become an option on Ferris mowers until later in 2005 (Butler Aff. ¶ 7), at which point newer models came with dealer instructions for assembling the roll bar. (Dealer Setup & Adjustment Instructions, Ex. D to First Am. Compl.) From the court's own review, it appears that ROPS are now a standard feature on the Ferris IS1500 Z. See Specifications, FERRIS,

http://www.ferrisindustries.com/zero-turn-mowers/is1500z/specifications (last visited Feb. 2, 2012) (listing a "Certified Roll-over Protection System" as a standard feature). Wildermuth admitted that material he received from Ferris at the training sessions for authorized dealers discussed the safe operation of Ferris mowers and the benefits of ROPS. (Wildermuth Dep. at 11, 22.) Wildermuth further testified that he will not modify a mower upon a customer's request to remove a roll bar because it puts his company "at too much of a risk." (Id. at 88-89.)

Wildermuth personally sold the used Ferris mower without ROPS to Decedent on March 11, 2009. (Id. at 67.) Wildermuth sold the used mower "as is," without any warranties. (Id. at 105-06.) At the time of sale, Wildermuth took Decedent to Peoria Midwest's parking lot to show Decedent how to operate the mower. (Id. at 68-70.) The parking lot is flat except for a slight slope towards the back that did not play a role in Wildermuth's instruction on the mower's operation. (Id.) Wildermuth does not know whether he explained to Decedent that the mower had no ROPS or the danger of the mower rolling over. (Id. at 74-75.)

On April 13, 2009, Decedent was operating the mower, cutting grass, when the mower "rolled over into a ditch and pinned him beneath it, causing [Decedent] to be held down by the machine and suffer mechanical asphyxiation causing his death." (First Am. Compl. at Count 1 ¶ 4.) Plaintiff, Decedent's wife, brought this survivorship and wrongful death action in the Circuit Court of Cook County on June 13, 2011. In her strict liability claims against all Defendants (Counts I--IV), including Peoria Midwest, Plaintiff alleges that her husband's death was caused by inadequate warnings and instructions concerning the mower's safe use and operation; an insufficient and inadequate braking mechanism; and the lack of ROPS. (Id. at Count I ¶ 5, Count II ¶ 4.) Plaintiff's first amended complaint, filed on August 8, 2011 in this court, also brings negligence claims against Peoria Midwest (Counts VI and VII), alleging that Peoria Midwest negligently sold the mower without a sufficient braking system; failed to instruct and/or warn Decedent that ROPS "would prevent injury and death in the event" of a rollover and that the mower was unsafe without ROPS; and failed to equip the mower with ROPS before selling it to Decedent. (Id. at Count III¶ 6.)

Briggs removed the case to federal court, arguing that federal diversity jurisdiction applies because Peoria Midwest is fraudulently joined. Plaintiff has moved to remand. Also outstanding are Peoria Midwest's motion to dismiss Counts III, IV , VI, and VII,*fn3 and Briggs' motion to transfer venue on forum non conveniens grounds.

DISCUSSION

I. Legal ...


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