Case 3:10-cv-00252-TSL-FKB Document 10

Filed 08/24/10 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DIVISION

KENNETH M. CROOK AND PATRICIA M. CROOK

PLAINTIFFS

VS.

CIVIL ACTION NO. 3:10cv252-TSL-FKB

OLSHAN FOUNDATION REPAIR COMPANY OF JACKSON, LLC

DEFENDANT

FIRST AMENDED COMPLAINT (Jury Trial Demanded) COME NOW, Plaintiffs Kenneth M. Crook and Patricia M. Crook (Plaintiffs) and file this their Complaint against Olshan Foundation Repair Company of Jackson, LLC (hereinafter referred to as Defendant Olshan), and in support hereof state the following: PARTIES AND JURISDICTION 1. Plaintiffs are adult resident citizens of Madison County, Mississippi, residing at 507

Harvest Drive, Ridgeland, Mississippi 39157. 2. Defendant Olshan is a foreign limited liability company organized in the State of Texas

and doing business in Mississippi from its local office at 5835 Commerce Plaza Drive, Jackson, Mississippi 39201. Defendant Olshan may be served with service of process through its registered agent, Capitol Corporate Services, Inc., at 248 E. Capitol Street, Suite 840, Jackson, Mississippi 39201. 3. This action arises under the statutory and common law of the State of Mississippi and

Plaintiffs seek remedies in accordance with Mississippi law. This Court has jurisdiction over the subject matter of this action and over the parties herein, and venue is proper in Hinds County.

Case 3:10-cv-00252-TSL-FKB Document 10

Filed 08/24/10 Page 2 of 7

SALIENT FACTS 4. 5. Plaintiffs reallege paragraphs 1-3 above. On or about March 15, 2006, Plaintiffs purchased rental property located at 128

Chinquipin Cove, Ridgeland, Mississippi 39157 from Norma Neece. In conjunction with the purchase and sale of said property, Norma Neece transferred to Plaintiffs, Defendant Olshans Lifetime Transferable Warranty in accordance with the terms and conditions of Defendant Olshans Lifetime Transferable Warranty. 6. At all times relevant hereto, Plaintiffs were in full compliance with all terms and

conditions of Defendants lifetime warranty on Plaintiffs rental property. 7. 2006. 8. Upon discovering some foundation problems, Plaintiffs notified Defendant Olshan of Plaintiffs fully furnished the subject rental property and leased it beginning April 13,

same in accordance with the lifetime warranty. 9. On or about April 09, 2007, Defendant Olshan arrived at Plaintiffs rental home at 128

Chinquipin Cove, Ridgeland, Mississippi 39157 to repair the propertys foundation in accordance with Defendants Lifetime Transferrable Warranty. 10. While digging on the subject property to repair the foundation, Defendant Olshan cut the

natural gas pipeline. Rather than notify the City of Ridgeland Fire Department of the ensuing gas leak or contact the gas company, ATMOS, Defendant Olshan simply covered the hole with the gas leak with dirt. The gas built up outside the home and backed up to such a concentration that the pilot in the heating, ventilation, and air conditioning unit in the attic under the roof ignited the escaped gas and caused a fire explosion which totally destroyed the home.

Case 3:10-cv-00252-TSL-FKB Document 10

Filed 08/24/10 Page 3 of 7

11.

As a result of Defendants cutting of the natural gas line and simply covering the hole

where the gas leaked from that gas line, Defendant caused Plaintiffs rental home to explode. The home and its contents were totally destroyed by the ensuing fire, and the soil was contaminated by the natural gas which escaped. Count I. Breach of Contract 12. 13. Plaintiffs reallege paragraphs 1-11 above. Under its lifetime warranty, Defendant Olshan was contractually obligated to repair the

foundation of the subject property. 14. Rather than repair the foundation, Defendant Olshan breached the contract by causing an

explosion which lead to a fire that totally destroyed the rental home. 15. As a result of Defendant Olshans breach of contract, Plaintiffs suffered as actual and

consequential damages the loss of their rental property, income from their tenants, and the contents of their fully-furnished rental home. Moreover, Defendant Olshan caused contamination of the land by allowing gas to spew into the soil for a time period in excess of half an hour prior to the resultant explosion. Additionally, Plaintiffs suffered mental anguish from discovering that a gas explosion destroyed their rental property and could have caused them or their tenants grave bodily harm or even death. Count II. Negligence 16. 17. Plaintiffs reallege paragraphs 1-15 above. Defendant Olshan failed to exercise reasonable care in repairing the foundation of

Plaintiffs rental property and failed to assure that the natural gas line on the property would not be cut to avoid the foreseeable explosion of the home and contamination of the soil, as well as the loss of tenant income and the contents of the rental home.

Case 3:10-cv-00252-TSL-FKB Document 10

Filed 08/24/10 Page 4 of 7

18.

As a result of Defendant Olshans negligence, Plaintiffs lost their rental property, income

from their tenants, and the contents of their fully-furnished rental home. Plaintiffs further suffered a diminution in the value of the real property in that natural gas leaked into the soil. Additionally, Plaintiffs suffered mental anguish from discovering that a gas explosion destroyed their rental property and could have caused them or their tenants grave bodily harm or even death. Count III. Negligent Training and Supervision 19. 20. Plaintiffs reallege paragraphs 1-18 above. Defendant Olshan failed to properly train and supervise its employees concerning proper

protocol regarding safety precautions to be taken prior to digging at residences. 21. Defendant Olshan also failed to properly train and supervise its employees concerning

proper protocol when said employees accidently cut dangerous utility lines such as gas lines. 22. As a result of Defendant Olshans aforesaid failures to properly train and supervise its

employees, Defendant Olshans employees began digging at Plaintiffs rental home without first seeking to have the utility lines marked on the property and failing to immediately call 911 and then contact Mississippi One-Call System, Inc. and ATMOS once the gas line had been cut. 23. Defendant Olshans negligence in training and supervising its employees caused the fire

loss of Plaintiffs rental home, the loss of the homes contents, and the loss of the rental income. Moreover, the real property was contaminated by the natural gas leak into the soil. Additionally, Plaintiffs suffered mental anguish from discovering that a gas explosion destroyed their rental property and could have caused them or their tenants grave bodily harm or even death. Count IV. Gross Negligence and Punitive Damages 24. Plaintiffs reallege paragraph 1-23 above.

Case 3:10-cv-00252-TSL-FKB Document 10

Filed 08/24/10 Page 5 of 7

25.

Defendant Olshan was grossly negligent in failing to contact Mississippi One-Call

System, Inc. or the utility companies to obtain markings of the locations of underground utility lines in the excavation area prior to digging out the foundation on Plaintiffs rental home in contravention of Mississippi statutory law and Defendant Olshans own internal policies and guidelines. 26. Moreover, Defendant Olshan was also grossly negligent in failing to immediately call

911 and then notify or call Mississippi One-Call System, Inc. and the utility company and to take all reasonable steps to protect persons and property from the foreseeable consequences of this gas leak in contravention of Mississippi statutory law. 27. As a result of Defendant Olshans gross negligence and reckless disregard for the life,

welfare, and rights of the Plaintiffs, Defendant Olshan should be required to pay punitive or exemplary damages in an amount sufficient to ensure that Defendant and other such excavators are discouraged from unreasonably putting the lives and property of other people in danger when following industry standards and statutoryily-mandanted protocols would have prevented this gas leak and ultimate explosion. Count V. Tortious Breach of Contract 28. 29. Plaintiffs reallege paragraphs 1-27 above. Defendant Olshan breach its duty of good faith and fair dealing owed to Plaintiffs by

refusing to honor its lifetime warranty on the subject property in contravention of the terms of Defendant Olshans Lifetime Transferable Warranty. Moreover, Defendant Olshan failed and continues to fail to compensate Plaintiffs for their contractual damages, all in further contravention of Defendant Olshans Lifetime Transferable Warranty.

Case 3:10-cv-00252-TSL-FKB Document 10

Filed 08/24/10 Page 6 of 7

30.

The aforesaid breaches of contract by Defendant Olshan were and are malicious and/or

grossly negligent and exhibit Defendant Olshans reckless disregard for the lives and rights of Plaintiffs. WHEREFORE, PREMISES CONSIDERED, Plaintiffs Kenneth M. Crook and Patricia M. Crook demand the following relief: 1. Compensatory and punitive damages in an amount to be determined by a jury of their peers; 2. Any and all other specific and general relief to which Plaintiffs Kenneth M. Crook and Patricia M. Crook may be entitled; and 3. All costs of this action, expenses, attorneys fees, and prejudgment and post judgment interest as appropriate.

Respectfully submitted, Kenneth M. Crook & Patricia M. Crook, Plaintiffs By: /s/John Richard May, Jr. John Richard May, Jr., MSB# 1954 One of Their Attorneys

.
Of Counsel: John Richard May, Jr., MSB#1954
THE MAY LAW FIRM, PLLC 728 North Congress Street (39202) Post Office Box 23121 Jackson, Mississippi 39225 Tel. (601) 944-1888 Fax (601) 944-9555 Sanford Knott, MSB# 8477 SANFORD KNOTT & ASSOCIATES, P.A. 425 South State Street Post Office Box 1208 Jackson, Mississippi 39215-1208 Telephone Number: (601) 355-2000 Facsimile Number: (601) 355-2600

Case 3:10-cv-00252-TSL-FKB Document 10

Filed 08/24/10 Page 7 of 7

CERTIFICATE OF SERVICE I, John Richard May, Jr., one of the attorneys for the Plaintiffs, do hereby certify that I have this day served via ECF a true and correct copy of the foregoing First Amended Complaint to the following: M. James Weems, MSB# 9054 DANIEL COKER HORTON & BELL, P.A. 4400 Old Canton Road, Suite 400 Post Office Box 1084 Jackson, Mississippi 39215-1084 Telephone Number: (601) 969-7607 Facsimile Number: (601) 969-1116 jweems@danielcoker.com This the 24th day of August, 2010. /s/John Richard May, Jr. JOHN RICHARD MAY, JR.