KOSKI v. CARRIER CORPORATION (2017)

Order on the Defendants' Motions to Dismiss

Darren Koski and five other individuals bring this class action suit against various manufacturers of electric unitary heaters and heating, ventilation and air conditioning (“HVAC”) equipment, as well as three nationally recognized certification laboratories, for manufacturing allegedly defective heaters and HVAC equipment and falsely certifying that the products complied with the applicable safety standards. Each of the Defendants has filed a motion to dismiss the Amended Class Action Complaint (ECF Nos. 64-67, 69-71, 73.) For the reasons set forth below, the Court grants the motions to dismiss.

1. Background

Defendants Carrier Corporation (“Carrier”), Rheem Manufacturing Company (“Rheem”), Lennox International, Inc. (“Lennox”), and Nortek Global HVAC, LLC (“Nortek”) (collectively, the “HVAC Manufacturer Defendants”) manufacture HVAC equipment for residential and commercial use. (Compl. ¶ 2, ECF No. 10.) Defendants Tutco, Inc. (“Tutco”) and Warren Technology, Inc. (“Warren”) (collectively, the “Heater Manufacturer Defendants”) manufacture electric unitary heaters. (Id. ¶ 3.) Defendants Underwriters Laboratories, Inc. (“UL, Inc.”), Underwriters Laboratories LLC (“UL LLC”), and Intertek Testing Services, NA, Inc. (“Intertek”) (collectively, the “Certification Defendants”) are nationally recognized certification laboratories that are accredited to certify compliance with safety standards. (Id. ¶ 8.) The Heater and HVAC Manufacturer Defendants retain the Certification Defendants to certify that their heaters and HVAC equipment comply with the safety standards. (Id. ¶ 9.)

According to the Amended Class Action Complaint (the “Complaint”), electric unitary heaters are an integral part of HVAC systems. (Id. ¶¶ 1, 4.) Electric unitary heaters are designed to warm air as it flows over the heating elements. (Id. ¶ 5.) A non-self-resetting thermal cutoff, also known as a manually resettable thermal cutoff, is a safety device designed to prevent the heating elements from reaching hazardous temperatures and igniting fires. (Id. ¶¶ 5, 6.) The Plaintiffs allege that the applicable safety standards require electric unitary heaters to have manually resettable thermal cutoffs, and that the Certification Defendants certified that the Heater and HVAC Manufacturer Defendants' products comply with these standards even though they do not have manually resettable thermal cutoffs. (Id. ¶¶ 7, 9.) Thus, the Plaintiffs allege that all Defendants have made material misrepresentations to the Plaintiffs and concealed the dangers of the subject heaters and HVAC equipment. (Id. ¶¶ 10-11.)

The Plaintiffs allege that they have been damaged because the HVAC equipment and heaters that they purchased were “defective, unreasonably dangerous and unfit for the intended use, and less valuable than the heaters or HVAC equipment would have been had these Defendants' representations been true.” (Id. ¶ 12.) With respect to the Certification Defendants, the Plaintiffs assert a claim for breach of express warranty. With respect to the Heater and HVAC Manufacturer Defendants, the Plaintiffs assert three warranty-based claims, as well as claims for violations of the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201, et seq. (“FDUTPA”), unjust enrichment, fraudulent concealment, and declaratory relief. They seek to represent a nationwide class, as well as a Florida subclass, of all persons who own or purchased electric unitary heaters and HVAC products manufactured or sold by the Heater and HVAC Manufacturer Defendants that do not have a manually resettable thermal cutoff and have certification labels issued by the Certification Defendants. (Id. ¶¶ 26-27.)

2. Legal Standards

Federal Rule of Civil Procedure 8(a) requires “a short and plain statement of the claims” that “will give the defendant fair notice of what the plaintiff's claim is and the ground upon which it rests.” Fed. R. Civ. P. 8(a). The Supreme Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quotations and citations omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950. When considering a motion to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a plaintiff has stated a claim for which relief could be granted. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). For purposes of Rule 12(b)(6), a court generally may not look beyond the pleadings, which includes any information attached to a complaint. U.S. ex. Rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 (11th Cir. 2015) (internal citations omitted).

3. Discussion

A. Standing

Several of the Defendants have indirectly or tangentially questioned whether the Plaintiffs have standing. (See, e.g., Def. Carrier's Mot. to Dismiss at 18, ECF No. 65.) “[S]tanding is a threshold jurisdictional question which must be addressed prior to and independent of the merits of a party's claims.” DiMaio v. Democratic Nat. Comm., 520 F.3d 1299, 1301 (11th Cir. 2008) (citing Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) ) (internal quotations omitted). A plaintiff has standing to bring a claim if the following three elements are met:  (1) the plaintiff has suffered an injury in fact; (2) there is a causal connection between the injury and the conduct complained of; and (3) it is likely that the injury will be redressed by a favorable decision. Lujan v. Def.'s of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). An injury in fact is “an invasion of a legally protected interest which is (1) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (internal quotations and citations omitted). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way.” Spokeo, Inc. v. Robins, ––– U.S. ––––, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (internal quotations and citations omitted). For an injury to be concrete, the “injury must be ‘de facto’; that is, it must actually exist.” Id. An injury need not be tangible in order to be concrete. Id. at 1549.

As the Defendants point out, none of the Plaintiffs allege that they have experienced a problem with their HVAC systems due to the lack of a manually resettable thermal cutoff. However, the Plaintiffs allege that they overpaid for the heaters and HVAC equipment because the products are less valuable as a result of the alleged defect. (Compl. ¶ 12.) At the pleading stage, “general factual allegations of injury resulting from a defendant's conduct may suffice to establish standing.” Case v. Miami Beach Healthcare Grp., Ltd., 166 F.Supp.3d 1315, 1318 (S.D. Fla. 2016) (Martinez, J.) (citing Resnick v. AvMed, Inc., 693 F.3d 1317, 1321 (11th Cir. 2012) ).

In Lamb v. Graco Children's Products, Inc., the Northern District of Florida held that plaintiffs who purchased child car seats that included an allegedly false warranty that the car seat conformed to federal safety standards had standing because they alleged that they overpaid for the car seats. No. 4:11cv477, 2012 WL 12871963, at *1 (N.D. Fla. Jan. 24. 2012). The court noted that “[t]his is the very gravamen of an express warranty claim under Florida law.” Id. In addition, FDUTPA specifically defines damages as “the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered․” Collins v. DaimlerChrysler Corp., 894 So.2d 988, 990 (Fla. 5th Dist. Ct. App. 2004) (internal quotations and citations omitted). Thus, courts in this district have held that allegations of loss of value and/or overpayment in breach of warranty and FDUTPA cases are sufficient to establish standing at the motion to dismiss stage. See, e.g., Melton v. Century Arms, Inc., 243 F.Supp.3d 1290, 1297-1300 (S.D. Fla. 2017) (Moreno, J.) (holding that alleged overpayment, loss of value, and loss of usefulness was sufficient to establish standing to bring claims for violations of FDUTPA, breach of warranty, and unjust enrichment); Guerrero v. Target Corp., 889 F.Supp.2d 1348, 1354 (S.D. Fla. 2012) (Cohn, J.) (holding that allegations that the honey the plaintiff purchased lacked an essential ingredient and was therefore less valuable than honey that did not lack the ingredient was sufficient to confer standing). The Plaintiffs' allegations that they overpaid for the heaters and HVAC products are sufficient to establish standing at this stage in the case.

B. Failure to State a Claim

The Plaintiffs agree with the Defendants that Counts One (breach of express warranty), Two (breach of implied warranty of merchantability), and Three (breach of implied warranty of fitness for a particular purpose) of the Complaint should be dismissed with prejudice because the Plaintiffs failed to provide pre-suit notice of the alleged defect to the Defendants as required by Florida law. (See, e.g., Pl.'s Resp. to Def. Rheem's Mot. to Dismiss at 4, ECF No. 90.) Therefore, the Court will only address the merits of the Defendants' motions to dismiss Counts Four (FDUTPA), Five (unjust enrichment), Six (fraudulent concealment), and Seven (declaratory relief) of the Complaint.

1. Alleged Violations of FDUTPA

Count Four of the Complaint alleges violations of FDUTPA by the HVAC and Heater Manufacturer Defendants. (Compl. ¶¶ 133-140.) Pursuant to Florida Statute § 95.11(3)(f), the statute of limitations for a FDUTPA claim is four years. See Marlborough Grp., Ltd. v. Azimut-Benetti, et al., 505 Fed. Appx. 899, 906 (11th Cir. 2013) (citations omitted). The statute of limitations accrues at the time the product at issue is purchased. See South Motor Co. of Dade Cty. v. Doktorczyk, 957 So.2d 1215, 1218 (Fla. 3d. Dist. Ct. App. 2007) (holding that the plaintiff's FDUTPA cause of action accrued when the defendant sold the warranty to the plaintiff).

Plaintiffs Yunis, Commins, Suri, and Canales all purchased their HVAC equipment, or purchased homes in which the HVAC equipment was already installed, more than four years ago. (Compl. ¶¶ 36, 50, 57, 64.) The Complaint alleges that the Plaintiffs are within the statute of limitations because they did not discover the alleged defect prior to September 2016. (Id. ¶ 97.) In addition, the Plaintiffs allege that the Defendants are estopped from relying on the statute of limitations “by virtue of its acts of affirmative misrepresentation and fraudulent concealment, which include concealment from the Plaintiffs and Classes that the subject Heaters and HVAC equipment were defective and unreasonably dangerous.” (Compl. ¶ 98.)

The Florida legislature has set forth specific grounds for tolling limitations periods, which “precludes application of any tolling provision not specifically provided therein.” See Hearndon v. Graham, 767 So.2d 1179, 1185 (Fla. 2000); Fla. Stat. § 95.051. Fraudulent concealment is not included among the grounds for tolling statutes of limitation. See Fla. Stat. § 95.051. The Florida legislature has established a delayed discovery rule for actions founded upon fraud or constructive fraud. Fla. Stat. § 95.031(2)(a); Marlborough Grp., 505 Fed. Appx. at 905. However, since claims under FDUTPA are founded on statutory liability, not fraud, the delayed discovery rule does not apply. Id. at 906.

Notwithstanding the statutory grounds for tolling limitations periods, Florida courts have held that “[e]quitable estoppel can be raised to bar a defendant from unfairly claiming the benefit of the statute of limitations where a plaintiff can show that the defendant willfully induced the plaintiff to forego suit until after the limitations period has ended.” Fox v. City of Pompano Beach, 984 So.2d 664, 667 (Fla. 4th Dist. Ct. App. 2008) (citing Major League Baseball v. Morsani, 790 So.2d 1071, 1077 n.12 (Fla. 2001) ). However, equitable estoppel “presupposes that the plaintiff knew of the facts underlying the cause of action but delayed filing suit because of the defendant's conduct.” Black Diamond Properties, Inc. v. Haines, 69 So.3d 1090, 1093 (Fla. 5th Dist. Ct. App. 2011) (citing Ryan v. Lobo De Gonzalez, 841 So.2d 510, 518 (Fla. 4th Dist. Ct. App. 2003) ) (internal quotations omitted); see also Spadaro v. City of Miramar, 855 F.Supp.2d 1317, 1329 (S.D. Fla. 2012) (Cohn, J.). Here, the Plaintiffs allege that they did not discover, and could not have reasonably discovered, the defect until after the statute of limitations had run. (Compl. ¶ 97.) Therefore, they cannot satisfy the requirements for equitable estoppel, and Plaintiffs Yunis, Commins, Suri, and Canales's FDUTPA claims are barred by the statute of limitations.

Plaintiffs Koski and Alonso purchased homes in 2013 that have Carrier and Nortek HVAC equipment, respectively. (Compl. ¶¶ 43, 70.) They allege that the HVAC and Heater Manufacturer Defendants violated FDUTPA “by affixing materially false product safety certification ‘labels’ to the subject products,” and that they relied on the certification labels in “accepting” the equipment at the time they purchased their homes. (Id. ¶¶ 46, 72, 138.) In order to state a claim under FDUTPA, a plaintiff must allege:  (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages. City First Mortg. Corp. v. Barton, 988 So.2d 82, 86 (Fla. 4th Dist. Ct. App. 2008). “The Florida Supreme Court has noted that ‘deception occurs if there is a representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment.’ ” Zlotnick v. Premier Sales Grp., Inc., 480 F.3d 1281, 1284 (11th Cir. 2007) (quoting PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773, 777 (Fla. 2003) ).

All of the Defendants argue that the Plaintiffs have failed to plead facts sufficient to demonstrate that the Defendants violated the applicable safety standards. (See, e.g., Def. Carrier's Mot. to Dismiss at 13-17.) The Complaint alleges that “[t]he national safety standards specifically require that unitary electric heaters incorporate non-self-resetting thermal cutoffs (“Fail-Safe Cutoffs”) to de-energize the heating elements before hazardous temperatures are reached to prevent the foreseeable risks of overheat fires.” (Compl. ¶ 7.) The Complaint alleges that the heaters and HVAC equipment manufactured by the Defendants do not comply with the safety standards because they do not incorporate non-self-resetting thermal cutoffs. (Id. ¶¶ 9-11.) This is the sole violation of the safety standards alleged by the Plaintiffs. The Plaintiffs cite to two sets of safety standards that the Defendants are alleged to have violated:  “UL1995” and “UL60335-2-40.” (Id. ¶ 7.)

The Defendants assert that the safety standards do not universally require that unitary electric heaters incorporate manually resettable thermal cutoffs. (See, e.g., Def. Carrier's Mot. to Dismiss at 14-17.) Some of the Defendants provided copies of the safety standards cited to by the Plaintiffs as exhibits to their motions to dismiss (See, e.g., Def. Rheem's Mot. to Dismiss Exs. A-B, ECF Nos. 64-1, 64-2.) In ruling on a motion to dismiss, a court may consider a document that is not attached to the Complaint when “a plaintiff refers to a document in its complaint, the document is central to its claim, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss.” Financial Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (citations omitted). All of these requirements are met with respect to the safety standards cited in the Complaint. Therefore, the Court may consider the copies of the standards provided by the Defendants.

One of the two standards cited to by the Plaintiffs, UL 60335-2-40, does not become effective until November 30, 2020 for new products, and November 30, 2022 for existing products. (UL 60335-2-40 at 14, ECF No. 64-2.) Therefore, it is inapplicable to this case. The second standard, UL 1995, provides in Clause 30.16 that:

Except as specified in Clause 30.18, a unit employing electric heaters shall be provided with one or more manually resettable or replaceable backup protective devices ․ that will, with the contacts of the automatically resetting temperature-limiting control permanently closed, limit the temperatures to comply with the requirements․

(UL 1995 at 68, ECF No. 64-1.) Clause 30.18 provides that,

The requirement specified in Clause 30.16 does not apply if no part of the automatically resetting temperature-limiting control circuit cycles under intended operating conditions. For example, an automatically resetting temperature-limiting control that directly controls a heating element is not required to be provided with the backup protection specified in Clause 30.16. The backup protection specified in Clause 30.16 is required for a product employing an electric heater that incorporates a switching device whose coil circuit is controlled by both the automatically resetting temperature-limiting control and a temperature-regulating control for the heater, except for products that comply with the exception of Clause 30.15.

(Id.) Thus, the Defendants correctly note that the safety standards do not require that all units employing electric heaters incorporate a manually resettable thermal cutoff. As a result, the Plaintiffs' allegation that the Defendants' products do not have a manually resettable thermal cutoff is not, on its own, sufficient to allege a violation of the safety standards because the Plaintiffs have not alleged that the subject heaters and HVAC equipment are the type that require a manually resettable thermal cutoff.

In response to the Defendants' motions to dismiss, the Plaintiffs argue that “it is the position of the Plaintiffs that the devices in the Plaintiffs' units do turn the units on and off under intended operating conditions.” (See, e.g., Resp. in Opp. to Def. Carrier Corp.'s Mot. to Dismiss at 5, ECF No. 86.) However, the Plaintiffs did not include this allegation in the Complaint, so the Court may not consider it. Based on the facts as they are currently alleged, it is just as plausible that the subject heaters and HVAC equipment do not require a manually resettable thermal cutoff as it is that they do require a manually resettable thermal cutoff. See American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (“the [Supreme] Court held in Iqbal, as it had in Twombly, that courts may infer from the factual allegations in the complaint ‘obvious alternative explanation[s],’ which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer.”).

In addition to the argument that the subject heaters and HVAC equipment do not violate the safety standards, Defendant Nortek argues that the certification labels that the Plaintiffs allege are false simply indicate that the Certification Defendants have certified the products as compliant with the safety standards. (Def. Nortek's Mot. to Dismiss at 14-15, ECF No. 70.) The deceptive trade practice alleged by the Plaintiffs is the affixing of false safety certification labels to the HVAC products when the products do not in fact comply with the safety standards. (Compl. ¶ 138.) However, the Complaint alleges that the Certification Defendants have in fact certified, albeit improperly, that the heaters and HVAC equipment comply with the safety standards. (Compl. ¶ 9.) Thus, it is unclear from the Complaint whether there are any misrepresentations on the certification labels that can be attributed to the HVAC and Heater Manufacturer Defendants.

Accordingly, Plaintiffs Koski and Alonso's FDUTPA claims fail because they have not adequately alleged that the HVAC products do not comply with the safety standards and have not adequately alleged that the Heater and HVAC Manufacturer Defendants are responsible for any misrepresentations in the certification labels.

2. Unjust Enrichment Claim

Count Five of the Complaint asserts a claim of unjust enrichment, alleging that the HVAC and Heater Manufacturer Defendants received and retained wrongful benefits from the Plaintiffs' purchases due to the misrepresentations in the safety certification labels. (Compl. ¶¶ 141-148.) The statute of limitations for an unjust enrichment claim is four years. Fla. Stat. § 95.11(3)(k); Beltran v. Miraglia, 125 So.3d 855, 859 (Fla. 4th Dist. Ct. App. 2013). The delayed discovery doctrine does not apply to claims for unjust enrichment, see Davis v. Monahan, 832 So.2d 708 (Fla. 2002), and, as noted above, the Plaintiffs do not meet the requirements for equitable estoppel of the statute of limitations. Therefore, Plaintiffs Yunis, Commins, Suri, and Canales's claims for unjust enrichment are barred by the statute of limitations.

“Under Florida law, unjust enrichment is an equitable remedy which necessarily fails upon a showing that an express contract exists.” Alvarez v. Royal Caribbean Cruises, Ltd., 905 F.Supp.2d 1334, 1341 (S.D. Fla. 2012) (Moreno, J.) (citing Williams v. Bear Stearns & Co., 725 So.2d 397, 400 (Fla. 5th Dist. Ct. App. 1998) ); see also David v. American Suzuki Motor Corp., 629 F.Supp.2d 1309, 1324 (S.D. Fla. 2009) (Cohn. J.). Accordingly, a plaintiff cannot maintain a claim for unjust enrichment if there is an express warranty governing the plaintiff's rights. David, 629 F.Supp.2d at 1324 (dismissing unjust enrichment claim because “the damages pled under unjust enrichment are not distinct from those pled under express warranty”); Speier-Roche v. Volkswagen Group of America Inc., No. 14-20107, 2014 WL 1745050, at *8 (S.D. Fla. April 30, 2014) (Moreno, J.).

Here, the Plaintiffs allege the existence of an express warranty with respect to each of the Heater and HVAC Manufacturer Defendants. (Compl. ¶¶ 102-106.) Relying on the same factual allegations as the claim for unjust enrichment, the Plaintiffs allege that the Defendants breached those warranties. (Id. ¶¶ 100-105.) Therefore, Plaintiffs Koski and Alonso may not bring claims for unjust enrichment.

The Plaintiffs argue that they should be permitted to assert their unjust enrichment claim because they have conceded that the breach of warranty claims should be dismissed. (See, e.g., Resp. in Opp. to Rheem's Mot. to Dismiss at 9, ECF No. 90.) However, the Defendants note that courts have dismissed claims for unjust enrichment even where a plaintiff has failed to adequately state a claim for breach of warranty. Leader Glob. Sol.'s, LLC v. Tradeco Infraestructura, S.A. DE C.V., 155 F.Supp.3d 1310, 1320-21 (S.D. Fla. 2016) (Ungaro, J.) (dismissing unjust enrichment claim due to existence of express contract governing the plaintiff's rights even though the court also dismissed the breach of contract claim); Speier-Roche, 2014 WL 1745050, at *8 (citing Licul v. Volkswagen Grp. of Am., No. 13-61686, 2013 WL 6328734, at *22 n.2 (S.D. Fla. Dec. 5, 2013) (Cohn, J.) ) (holding that “Plaintiff's failure to state a claim for breach of warranty does not save the unjust enrichment claim.”). The Plaintiffs have not provided the Court with any contrary case law. Therefore, their argument fails.

The Plaintiffs also argue that they are permitted to plead in the alternative. (Pl.'s Resp. in Opp. to Rheem's Mot. to Dismiss at 9.) The Plaintiffs are correct that a plaintiff may plead unjust enrichment as an alternative theory to a legal cause of action. Licul, 2013 WL 6328734, at *7 (citing Weaver v. Mateer & Harbert, P.A., No. 09-514, 2012 WL 3065362 (M.D. Fla. July 27, 2012) ). However, “where the unjust enrichment claim relies upon the same factual predicates as a plaintiff's legal causes of action, it is not a true alternative theory of relief but rather is duplicative of those causes of action” and warrants dismissal. Id. (dismissing unjust enrichment claim because it relied on the same wrongdoing addressed by the plaintiffs' FDUTPA claim). Here, the Plaintiffs' unjust enrichment claim relies on the same factual predicate as all of their other claims. Therefore, it is not a true alternative theory of relief.

Accordingly, all of the Plaintiffs' claims for unjust enrichment fail as a matter of law.

3. Fraudulent Concealment Claim

Count Six of the Complaint asserts a claim for fraudulent concealment, alleging that the HVAC and Manufacturer Defendants “fraudulently concealed from and/or intentionally failed to disclose to Plaintiffs and the Class that the subject products were defective and dangerous.” (Compl. ¶¶ 149-159.) To state a claim for fraudulent concealment under Florida law, a plaintiff must allege facts sufficient to establish the following:  (1) the defendant concealed or failed to disclose a material fact; (2) the defendant knew or should have known that the material fact should be disclosed; (3) the defendant knew its concealment of the fact would induce the plaintiff to act; (4) the defendant had a duty to disclose the material fact; and (5) the plaintiff relied on the misrepresentation to his or her detriment. Aprigliano v. American Honda Motor Co., Inc., 979 F.Supp.2d 1331, 1342 (S.D. Fla. 2013) (Altonaga, J.) (citing Philip Morris USA, Inc. v. Hess, 95 So.3d 254, 259 (Fla. 4th Dist. Ct. App. 2012) ).

The Plaintiffs' claim for fraudulent concealment is subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Aprigliano, 979 F.Supp.2d at 1341-42 (applying the heightened pleading requirement of Rule 9(b) to claim for fraudulent concealment). Under Rule 9(b), “a party must state with particularity the circumstances constituting fraud or mistake.” “The ‘particularity’ requirement serves an important purpose in fraud actions by alerting defendants to the precise misconduct with which they are charged and protecting defendants against spurious charges of immoral and fraudulent behavior.” W. Coast Roofing & Waterproofing, Inc. v. Johns Manville, Inc., 287 F. App'x 81, 86 (11th Cir. 2008) (citations omitted). To meet this standard, a complaint needs to identify the precise statements, documents, or misrepresentations made; the time and place of, and the persons responsible for the alleged statements; the content and manner in which the statements misled the plaintiff; and what the defendant gained through the alleged fraud. Id.; see also Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1237 (11th Cir. 2008) (“under Rule 9(b), it is sufficient to plead the who, what, when, where and how of the allegedly false statements and then allege generally that those statements were made with the requisite intent”); Aprigliano, 979 F.Supp.2d at 1342.

As set forth above, the Plaintiffs have failed to adequately allege that the Defendants concealed or failed to disclose a material fact because they have not adequately alleged that the Defendants violated the safety standards. Moreover, the Plaintiffs have failed to plead their fraudulent concealment claim with particularity. The Plaintiffs make the conclusory allegation that the “HVAC and Heater Manufacturer Defendants undertook active and ongoing steps to conceal the defect.” (Compl. ¶ 155.) However, the Plaintiffs do not identify those “active and ongoing steps.” The Complaint contains no allegations specific to the participation of each Defendant, and no allegations concerning who was involved in the fraudulent scheme, the time period or location of the scheme, or how each of the Defendants accomplished the fraudulent concealment. The Plaintiffs' conclusory allegations are wholly insufficient to meet the heightened pleading requirements of Rule 9(b). See Aprigiliano, 979 F.Supp.2d at 1343 (holding that fraudulent concealment claim did not meet the requirements of Rule 9(b) because the plaintiffs did not allege the specifics of the purported scheme, the means used to perpetrate the scheme, or specific facts indicating the existence of the alleged scheme).

The Defendants also argue that Florida's economic loss rule bars the Plaintiffs' fraudulent concealment claim. (See, e.g., Def. Rheem's Mot. to Dismiss at 16, ECF No. 64.) “[T]he economic loss rule is a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses.” Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Companies, Inc., 110 So.3d 399, 401 (Fla. 2013) (citing Indem. Ins. Co. of N. Am. v. Am. Aviation, Inc., 891 So.2d 532, 536 (Fla. 2004) ). The rule is “the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby encourages citizens to avoid causing physical harm to others.” Id. (internal quotations and citations omitted). The rule prohibits “a party from suing in tort for purely economic losses to a product or object provided to another for consideration․” Id. at 405 (internal quotations and citations omitted).

The economic loss rule previously applied to both products liability cases and cases in which the parties were in contractual privity, although the Florida Supreme Court had carved out exceptions for negligent misrepresentation and fraudulent inducement. Id. at 402-403, 406. However, in 2013 the Florida Supreme Court held in Tiara Condo. Ass'n, Inc. v. Marsh & McLennan Companies, Inc. that the economic loss rule only applied to products liability cases. Id. at 407. In so holding, the court noted that it had previously “expressed its desire to return the economic loss rule to its intended purpose – to limit actions in the products liability context,” but that previous rulings had not gone far enough because they left intact “a number of exceptions.” Id.

In light of the Tiara decision, courts have noted that the viability of the negligent misrepresentation exception to the economic loss rule is unsettled. See, e.g., Thermoset Corp. v. Bldg. Materials Corp. of America, No. 14-60268, 2014 WL 11775929, at *4 (S.D. Fla. June 4, 2014) (Cohn, J.); Burns v. Winnebago Indus., Inc., 2013 WL 4437246, at *3 (M.D. Fla. Aug. 16, 2013). However, relying on the Tiara Court's statement that the purpose of the economic loss rule is to “protect manufacturers from liability for economic damages caused by a defective product beyond those damages provided by warranty law,” Burns, 2013 WL 4437246 at *3, and its “resounding approval of the economic loss rule in the products liability context,” Aprigliano, 979 F.Supp.2d at 1338, at least four courts in the Middle and Southern Districts of Florida have held that the economic loss rule bars claims for negligent misrepresentation and fraudulent concealment in products liability cases. In re Takata Airbag Products Liability Litigation, 193 F.Supp.3d 1324, 1338-39 (S.D. Fla. 2016) (Moreno, J.); Aprigliano, 979 F.Supp.2d at 1338; Thermoset, 2014 WL 11775929, at *5; Burns, 2013 WL 4437246, at *4. The Middle District of Florida noted that “[t]o hold otherwise would allow the economic loss rule to be manipulated such that any time a purchaser received a defective product that did not cause any injuries or damage to other property, such a purchaser could assert claims for negligent and fraudulent concealment regarding the defect to avoid the economic loss rule.” Burns, 2013 WL 4437246, at *4. Judges Moreno, Altonaga and Cohn have found this reasoning to be persuasive, particularly where the allegations supporting a plaintiff's negligent misrepresentation or fraudulent concealment claims are the same as the allegations supporting the warranty claims. Takata, 193 F.Supp.3d at 1339; Aprigliano, 979 F.Supp.2d at 1338; Thermoset, 2014 WL 11775929, at *4-5.

Here, the allegations supporting the fraudulent concealment claim are the same as those supporting all of the Plaintiffs' claims. The sole argument that the Plaintiffs make in opposition to the application of the economic loss rule is that “based on the Plaintiffs' concession that all breach-of-warranty claims should be dismissed with prejudice, [the Defendants'] argument fails.” (See, e.g., Pl.'s Resp. to Def. Rheem's Mot. to Dismiss at 6, ECF No. 90.) However, the Plaintiffs have provided the Court with no case law to support this argument, nor has the Court found any case law that makes the application of the economic loss rule contingent on the viability of a plaintiff's warranty claims. This is likely because the Florida Supreme Court held that the economic loss rule applies to products liability cases in general, not just to cases involving breach of warranty claims. Accordingly, the Middle District of Florida applied the economic loss rule in a case in which the plaintiff only asserted claims for negligent misrepresentation and fraudulent concealment because the plaintiff's claims were “product liability claims retitled as claims for negligent misrepresentation and fraudulent concealment.” 2013 WL 4437246, at *1, 3. Therefore, the Court finds that the economic loss rule applies and the Plaintiffs' claims for fraudulent concealment are dismissed with prejudice.

4. Declaratory Relief

Count Seven of the Complaint seeks injunctive and/or declaratory relief and asks the Court to rule, among other things, that:  (1) electric unitary heaters and HVAC equipment that do not incorporate non-self-resetting thermal cutoffs are defective; (2) the HVAC and Manufacturer Defendants must notify owners of the defects; and (3) the HVAC and Manufacturer Defendants must pay for repairs and damages. (Compl. ¶¶ 160-164.) Since the Plaintiffs' substantive claims have all been dismissed, the Court must dismiss the claim for declaratory relief as well. See Eveillard v. Nationstar Mortg. LLC, No. 14-61786, 2015 WL 127893, at *9 (S.D. Fla. Jan. 8, 2015) (Bloom, J.) (citations omitted) (“Declaratory relief is a procedural device which depends on an underlying substantive cause of action and cannot stand on its own.”).

4. Conclusion

For the foregoing reasons, the Court grants the Defendants' motions to dismiss the Complaint (ECF Nos. 64-67, 69-71, 73). The Court dismisses with prejudice Count One in its entirety; Count Two in its entirety; Count Three in its entirety, Count Four as to Plaintiffs Yunis, Commins, Suri, and Canales; Count Five in its entirety; Count Six in its entirety; and Count Seven as to Plaintiffs Yunis, Commins, Suri, and Canales. The Court dismisses without prejudice Count Four as to Plaintiffs Koski and Alonso and Count Seven as to Plaintiffs Koski and Alonso. If Plaintiffs Koski and Alonso are able to remedy the deficiencies in Counts Four and Seven, they may file an amended complaint on or before September 1, 2017.

The Court notes that the Plaintiffs' responses to the Certification Defendants' motions to dismiss state that the Plaintiffs mistakenly failed to assert FDUTPA and unjust enrichment claims against the Certification Defendants due to “an inadvertent drafting error,” and that they should be granted leave to amend. (Pl.'s Resp. to UL's Mot. to Dismiss at 1, ECF No. 92; Pl.'s Resp. to Intertek's Mot. to Dismiss at 1, ECF No. 87.) However, the Plaintiffs have not raised the issue properly and must file a separate motion for leave to amend that attaches a copy of the proposed amendment. Rosenberg v. Gould, 554 F.3d 962, 967 (11th Cir. 2009) (“Where a request for leave to file an amended complaint simply is embedded within an opposition memorandum, the issue has not been raised properly.”) (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222 (11th Cir. 1999) ). The leave to amend granted in this Order only extends to Counts Four and Seven as currently asserted against the HVAC and Heater Manufacturer Defendants.

Done and ordered in chambers, at Miami, Florida, on August 18, 2017.

Robert N. Scola, Jr., United States District Judge