Homesite Insurance Company, et al. v. Norcold, Inc., et al.

• Court: District Court, D. Nevada
• Decided: September 30, 2025
• Docket: 2:21-cv-02167
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 HOMESITE INSURANCE COMPANY, et. Case No. 2:21-cv-02167-RFB-DJA al., 8 ORDER Plaintiffs, 9 v. 10 NORCOLD, INC., et al., 11 Defendants. 12

13 14 Before the Court are three motions for summary judgment (ECF Nos. 175, 178, 182). For 15 the following reasons: Plaintiffs’ Motion for Partial Summary Judgment, or in the Alternative for 16 an Order Treating Specified Facts as Established (ECF No. 178) is denied; Defendants’ Motion 17 for Partial Summary Judgment is granted (ECF No. 182); and Defendant CWI, Inc.’s Motion for 18 Summary Judgment (ECF No. 175) is partially granted. 19 20 I. PROCEDURAL HISTORY 21 On November 5, 2021, Plaintiff Homesite Insurance Company (“Homesite”) filed a 22 subrogation action against Norcold, Inc., Thetford Corporation, Camping World, Inc., and 23 Camping World of Henderson in the Clark County District Court of the State of Nevada. See ECF 24 No. 1-1. On December 8, 2021, Defendants removed this action to federal court. See ECF No. 1. 25 On December 14, 2021, Plaintiffs Traci Marx, Raymond Marx, Alyssa Dillard, and Seth 26 Dillard (“Individual Plaintiffs”) filed a product liability action against Norcold, Inc., the Thetford 27 Corporation, the Dyson-Kissner-Moran Corporation (“DKM”), Camping World Holdings, Inc., 28 CWI, Inc., and Camping World of Henderson in the Clark County District Court of the State of 1 Nevada. See Marx et al. v. Norcold, Inc. et al., No. 2:22-cv-00085-RFB-EJY (D. Nev. Jan 18, 2 2022) (No. 1-1). On January 18, 2022, Defendants removed this action to federal court. 3 On May 18, 2022, the Court ordered that both actions be consolidated under Homesite’s 4 case. See ECF No. 38. Shortly thereafter, Plaintiff Homesite amended its complaint to add CWI, 5 Inc. and DKM as defendants. See ECF Nos. 50, 93. Plaintiffs also added Norcold LLC and 6 Thetford LLC as defendants. See ECF Nos. 60, 67. 7 On August 14, 2024, the Court dismissed Defendants Camping World Holdings Inc. and 8 Camping World, Inc. from this consolidated action pursuant to the Parties’ Stipulation for 9 Dismissal. See ECF No. 162. 10 On October 29, 2024, Defendant CWI, Inc. filed a motion for summary judgment. See ECF 11 No. 175. Plaintiffs responded on November 18, 2024. See ECF No. 188. Defendant CWI, Inc. 12 replied on December 3, 2024. See ECF No. 199. 13 On October 30, 2024, Plaintiffs filed a joint motion for summary judgment against Norcold 14 Inc./Norcold LLC, Thetford Inc./Thetford LLC, and DKM (collectively, the “Norcold 15 Defendants”). See ECF No. 178. The Norcold Defendants responded on November 21, 2024. See 16 ECF No. 191. Plaintiffs replied on December 4, 2024. See ECF No. 199. 17 On October 31, 2024, the Norcold Defendants filed a motion for partial summary judgment 18 against the Individual Plaintiffs. See ECF No. 182. The Individual Plaintiffs responded on 19 November 21, 2024. See ECF No. 194. The Norcold Defendants replied on December 5, 2024. 20 See ECF No. 201. 21 On September 3, 2025, the Court a held hearing and issued preliminary rulings on these 22 motions for summary judgment. See ECF No. 214. The Court’s full opinion follows. 23 24 II. FACTUAL BACKGROUND 25 A. Undisputed Facts 26 Based on its review of the record, the Court finds the following facts to be undisputed. 27 In 2001, Nyada and Leon Marx purchased a 1999 Holiday Rambler Endeavour Class A 28 Motorhome (“RV”) from an unidentified dealer on Boulder Highway near Las Vegas, Nevada. 1 The Individual Plaintiffs are their immediate relatives.1 The RV was never owned by the Individual 2 Plaintiffs, as its title was placed in a family trust. Nevertheless, they did occasionally use it until it 3 was destroyed. 4 The RV contained a Norcold 1200 Series gas absorption refrigerator (“Refrigerator”) that 5 was designed, manufactured, and sold by Norcold LLC (f/k/a Norcold, Inc.). Norcold LLC is a 6 wholly owned subsidiary of Thetford LLC (f/k/a Thetford Corporation), which was a wholly 7 owned subsidiary of DKM throughout the operative time period—i.e., 2001 through 2018. 8 Throughout this period, Norcold maintained an incident log that recorded over 3000 claims 9 specific to their gas absorption refrigerators. Furthermore, Norcold initiated several product safety 10 recalls that covered the Refrigerator, particularly its cooling unit. According to some of them, the 11 cooling unit’s boiler tube could potentially leak flammable gases. Consequently, Nyada and Leon 12 Marx took the RV to Camping World of Henderson (“Camping World”) to have it serviced. 13 Camping World is an outdoor retailer, and it was operated by CWI, Inc. up until January 2023. 14 Notably, The Individual Plaintiffs had no contact with CWI, Inc. regarding the Refrigerator during 15 the operative time period. 16 CWI, Inc. and Norcold have a longstanding contractual relationship regarding the sale, 17 service, repair, and recall of Norcold-branded gas absorption refrigerators. Pursuant to this 18 relationship, CWI, Inc. performed recall work on the Marx’s Refrigerator. In 2005, it replaced the 19 Refrigerator’s cooling unit. Then, on March 28, 2011, it retrofitted the Refrigerator with a high 20 temperature sensor safety device (“HTS safety device”). This device was designed to shut off 21 refrigerators before they reach dangerous temperatures. Norcold provided parts to CWI, Inc., 22 directly paid CWI, Inc., and required CWI, Inc. to install the HTS safety device according to its 23 written instructions. 24 On December 21, 2018, a fire erupted within the RV while it was parked outside Traci and 25 Ray Marx’s home, which was located at 6040 Pooh Corner Street, Las Vegas, NV 89110. Alyssa 26 and Seth Dillard were living at their home at this time. The fire caused extensive damage to the 27 28 1 Raymond Marx is the son of Nyada and Leon Marx, and he is married to Traci Marx. Alyssa Dillard is the daughter of Raymond and Traci Marx, and she is married to Seth Dillard. 1 home, and the Individual Plaintiffs moved into a series of temporary housing arrangements for 2 2 years. 3 At the time of the fire, Traci and Ray Marx’s home was insured by Homesite. Pursuant to 4 the terms of their policy, Homesite reimbursed them for the damages resulting from the fire—i.e., 5 $1,121,222.37. 6 Following the fire, a laboratory examination of the Refrigerator revealed that its boiler tube 7 had ruptured and leaked flammable gases at some point before the fire occurred. 8 B. Disputed Facts 9 Meanwhile, the Court finds that the following facts are disputed by the parties. 10 First, the Parties dispute whether the Refrigerator caused the fire. Plaintiffs argue that the 11 Refrigerator must have caused the fire because Defendants have not produced evidence of a 12 plausible, alternate cause. In response, Defendants point to expert testimony that: (a.) identifies 13 other potential causes and (b.) suggests that the Refrigerator did not cause the fire. 14 Second, the Parties dispute whether Traci and Ray Marx’s business—i.e., R & R Backhoe, 15 LLC (“Backhoe”)—sustained losses because of the fire. By relying on Backhoe’s tax records, 16 Traci and Ray Marx claim that their business lost earnings due to the fire. Meanwhile, Defendants 17 argue that aggregate figures from several years are insufficient to tie Backhoe’s losses to the fire. 18 Third, the Parties dispute whether CWI, Inc. negligently installed the HTS safety device. 19 CWI, Inc. invokes expert testimony which declares that CWI, Inc. complied with Norcold’s 20 instructions to show that CWI, Inc. was not negligent. Meanwhile, Plaintiffs highlight photos and 21 expert statements that show some divergence between Norcold’s instructions and CWI, Inc.’s 22 recall work. 23 Fourth, the Parties dispute whether the allegedly negligent installation of the HTS safety 24 device caused the fire. CWI, Inc. claims that there is no competent evidence that CWI, Inc.’s 25 installation work caused the fire. In response, Plaintiffs cite Norcold’s instructions and expert 26 testimony, which acknowledge that the improper installation of the HTS safety device may result 27 in fires. 28 1 III. LEGAL STANDARD 2 Summary judgment is appropriate when the pleadings, depositions, answers to 3 interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no 4 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 5 FED. R. CIV. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The substantive 6 law governing a matter determines which facts are material to a case. See Anderson v. Liberty 7 Lobby, Inc., 477 U.S. 242, 248 (1986). Since all of Plaintiffs’ claims arise under state law, the 8 Court looks to Nevada law throughout the course of this Order. See In re Cnty. of Orange, 784 9 F.3d 520, 527 (9th Cir. 2015) (“[F]ederal courts sitting in diversity apply state substantive law.”) 10 (citation omitted). 11 The moving party bears the burden of showing the absence of material disputes of fact. See 12 Celotex, 477 U.S. at 323. The burden then shifts to the nonmoving party to show specific facts 13 demonstrating a genuine factual dispute for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio 14 Corp., 475 U.S. 574, 587 (1986). When considering the propriety of summary judgment, the Court 15 views all facts and draws all inferences in the light most favorable to the nonmoving party. See 16 Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). 17 Nevertheless, the nonmoving party may not merely rest on the allegations of their 18 pleadings. They must produce specific facts by affidavit or other evidence showing a genuine issue 19 of fact. See Anderson, 477 U.S. at 256. In other words, the nonmoving party “must do more than 20 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 21 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 22 genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks 23 omitted). It is improper for the Court to resolve genuine factual disputes or make credibility 24 determinations at the summary judgment stage. See Zetwick v. Cnty. of Yolo, 850 F.3d 436, 441 25 (9th Cir. 2017) (citations omitted). 26 The parties must support their motion and opposition with evidence, and specific references 27 to the record, that they want the Court to consider. See FED. R. CIV. P. 56(c)(A); Carmen v. S.F. 28 Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). It is not the Court's task “to scour the 1 record in search of a genuine issue of triable fact;” rather, the Court relies on the parties to “identify 2 [evidence] with reasonable particularity . . . .” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 3 1996); Schneider v. TRW, Inc., 938 F.2d 986, 990 n.2 (9th Cir. 1991) (A “[d]istrict court is under 4 no obligation to mine the full record for issues of triable fact.”). 5 Finally, if the Court declines to grant summary judgment, “it may enter an order stating 6 any material fact – including an item of damages or other relief – that is not genuinely in dispute 7 and treating the fact as established in the case.” FED. R. CIV. P. 56(g). 8 9 IV. DISCUSSION 10 A. The Court Denies Plaintiffs’ Motion for Partial Summary Judgment 11 Initially, Plaintiffs move for partial summary judgment on certain “affirmative defenses” 12 to their product liability claims. 13 As a preliminary matter, the Court construes these “affirmative defenses” as denials of 14 Plaintiffs’ product liability claims. Under the Federal Rules of Civil Procedure, “[p]leadings must 15 be construed so as to do justice.” FED. R. CIV. P. 8(e). In their respective answers, Defendants 16 assert “affirmative defenses” based on the absence of a defect and a lack of causation. Plaintiffs 17 take issue with this label. Nevertheless, Defendants have since clarified that these defenses are 18 “mere denials of Plaintiffs’ product liability claims.” ECF No. 191 at 7. To that end, the Court 19 construes them as such. 20 In doing so, the Court streamlines this procedurally convoluted motion. Simply put, 21 Plaintiffs are moving for summary judgment on two elements of their product liability claims: (i.) 22 the Refrigerator had a design defect and (ii.) the Refrigerator caused the fire. 23 i. Product liability in Nevada. 24 To bring a strict product liability claim, a plaintiff must show that the product had a defect 25 which rendered it unreasonably dangerous, the defect existed at the time the product left the 26 manufacturer, and the defect caused the plaintiff's injury. See Fyssakis v. Knight Equip. Corp., 27 826 P.2d 570, 571 (Nev. 1992). To establish a design defect, a plaintiff must show that a product 28 “failed to perform in the manner reasonably to be expected in light of its nature and intended 1 function and was more dangerous than would be contemplated by the ordinary user having the 2 ordinary knowledge available in the community.” Ford Motor Co. v. Trejo, 402 P.3d 649, 652 3 (Nev. 2017) (quoting Ginnis v. Mapes Hotel Corp., 470 P.2d 135, 138 (Nev. 1970) (describing the 4 consumer-expectations test)). 5 Meanwhile, to prevail on a negligence claim, “a plaintiff must establish four elements: (1) 6 the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages.” 7 Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009) (citation 8 omitted). 9 Here, Plaintiffs urge the Court to rule that the Refrigerator was defective as a matter of law 10 for the purposes of their strict liability claim. Similarly, they ask the Court to declare that the 11 Refrigerator caused fire for the purposes of their strict liability and negligence claims. For the 12 following reasons, the Court declines to rule on these elements as a matter of law, and it denies 13 Plaintiffs’ motion in full. 14 ii. The Court declines to find that the Refrigerator was defective as a matter of law. 15 First, the Court addresses the defect argument. In short, Plaintiffs argue that the 16 Refrigerator was defective as a matter of law because it was designed to “leak[ ] flammable gases 17 and ignite[ ] fires that put life and property at risk.” ECF No. 200 at 8. Undoubtedly, Plaintiffs 18 offer substantial evidence on this point. It is undisputed that the Refrigerator’s boiler tube leaked 19 flammable gases at some point before the fire, irrespective of its HTS safety device. Nevertheless, 20 Defendants cite various pieces of expert testimony which minimize the risk of fires associated with 21 refrigerator leaks. According to Chris Bloom, the Norcold Defendants’ fire-cause-origin expert, 22 “refrigerator leaks do[ ] not mean the refrigerator started the fire,” and “the rate of incident . . . is 23 extremely slight”—i.e., in “99 out of 100 examples [ ] they do not catch fire.” Similarly, one of 24 Plaintiffs’ experts acknowledged that “cooling unit [ ] leaks [do not] necessarily cause a fire,” 25 particularly in light of the HTS safety device. Based on this record, the Court declines to hold that 26 the Refrigerator exceeded the normal safety expectations of the average consumer as a matter of 27 law. A reasonable jury could conclude that the risk of fire posed by the Refrigerator did not render 28 it “unreasonably dangerous.” In other words, there is a genuine dispute of material fact regarding 1 the Refrigerator’s dangerousness and, therefore, defectiveness. 2 iii. The Court declines to find that the Refrigerator caused the fire as a matter of law. 3 Second, the Court addresses Plaintiffs’ causation argument. To summarize, they argue that 4 Defendants should be precluded from arguing causation because they have not produced evidence 5 of an alternate cause. But Defendants have presented evidence that weighs against the Refrigerator. 6 Initially, two independent experts who examined the RV concluded that the cause of the fire cannot 7 be determined. Additionally, Mr. Bloom identified multiple potential ignition sources that cannot 8 be ruled out, including the RV’s electrical components. Finally, Mr. Bloom asserted that the typical 9 indicators of a gas absorption refrigerator fire were not present in the Refrigerator. Overall, this 10 record gives rise to a genuine dispute of material fact as to causation, and Plaintiffs’ attempt to 11 undermine it by attacking Mr. Bloom’s findings should be directed at a jury. Cf. City of Pomona 12 v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014) (“A factual dispute is best settled by 13 a battle of the experts before the fact finder, not by judicial fiat.”). 14 In sum, the Court declines to rule on elements of Plaintiffs’ product liability claims because 15 they are embroiled in genuine disputes of material fact. Accordingly, the Court denies Plaintiffs’ 16 motion for partial summary judgment on these issues. 17 B. The Court Grants the Norcold Defendants’ Motion for Partial Summary 18 Judgment 19 The Norcold Defendants move for partial summary judgment against six of the Individual 20 Plaintiffs’ claims. The Court addresses each one in turn. 21 i. The Court grants summary judgment against the Individual Plaintiffs’ claims for 22 negligence per se, medical expenses, and damages based on an SBA loan. 23 As a preliminary matter, the Norcold Defendants argue that the Individual Plaintiffs’ 24 independent claims for negligence per se, medical expenses, and damages based on an SBA loan 25 fail as a matter of law. In their opposition, the Individual Plaintiffs agree. See ECF No. 194 at 2. 26 At this procedural posture, it was incumbent on the Individual Plaintiffs to establish genuine 27 disputes of material fact regarding these claims to preserve them. See Matsushita Elec. Indus. Co. 28 v. Zenith Radio Corp., 475 U.S. 574, 585–86 (1986). Since they did not, the Court grants summary 1 judgment against them. 2 ii. The Court grants summary judgment against the Individual Plaintiffs’ 3 fraudulent concealment claim. 4 In Nevada, a plaintiff must establish that the defendant was “under a duty to disclose [a 5 material fact]” to prevail in a fraudulent concealment claim. See Dow Chem. Co. v. Mahlum, 970 6 P.2d 98, 110 (Nev. 1998) (citation omitted). This duty arises “from the relationship of the parties,” 7 namely a fiduciary relationship or a “special relationship.” Id. (citation omitted). Parties enjoy a 8 special relationship where one “reasonably imparts special confidence in the defendant and the 9 defendant [ ] reasonably know[s] of this confidence.” Id. (citation omitted). According to the 10 Norcold Defendants, they did not owe the Individual Plaintiffs a duty to disclose because the 11 Parties lacked a fiduciary or special relationship. Therefore, their fraudulent concealment claim 12 fails as a matter of law. The Court agrees. 13 Historically, the Nevada Supreme Court has demanded more than a mere commercial 14 transaction to find a “special relationship.” See, e.g., Mackintosh v. Jack Matthews & Co., 855 15 P.2d 549, 554 (Nev. 1993) (“The [buyers] were not only purchasing the property from [the seller], 16 but were also financing the purchase with this [seller].”). In fact, it has been reluctant to find any 17 kind of relationship between parties that were not “directly involved in the transaction from which 18 [a] lawsuit arose.” Dow Chem. Co., 970 P.2d at 111. 19 Based on these guideposts, the Court finds that the Norcold Defendants did not owe the 20 Individual Plaintiffs a duty to disclose. Initially, the Parties were not engaged in a fiduciary 21 relationship. Furthermore, the Court declines to find a “special relationship” based on their tenuous 22 commercial connection. To recap, the Individual Plaintiffs did not purchase the RV from the 23 Norcold Defendants. Rather, their immediate relatives purchased it from an unidentified third- 24 party. Even if this tenuous connection gives rise to a commercial relationship, it does not create a 25 duty to disclose under Nevada law. See Nev. Power Co. v. Monsanto Co., 891 F.Supp. 1406, 1417 26 (D. Nev. 1995) (A “straightforward vendor-vendee relationship . . . creates no fraud-based duty to 27 disclose.”) (citation omitted) (cited approvingly by Dow Chem. Co., 970 P.2d at 110). 28 Plaintiffs urge the Court to recognize a “special relationship” based on public policy 1 considerations. This request is misguided. It relies on authorities that deal with negligence claims. 2 See, e.g., Sparks v. Alpha Tau Omega Fraternity, Inc., 255 P.3d 238, 244 (Nev. 2011) (discussing 3 special relationships that give rise to a duty of care). Nevada’s Supreme Court has already provided 4 more precise guidance for “special relationships” in the context of fraud-based claims. This Court 5 declines to legislate against it. 6 iii. The Court grants summary judgment against the Individual Plaintiffs’ emotional 7 distress claim(s). 8 Next, the Norcold Defendants argue that the Individual Plaintiffs’ emotional distress claims 9 are time-barred. Based on the record, it is not entirely clear whether the Individual Plaintiffs are 10 asserting independent claims for emotional distress. See, e.g., ECF No. 194 at 13 (Individual 11 Plaintiffs’ opposition) (“[T]he gravamen of plaintiffs’ emotional distress claims . . . .”). For the 12 sake of clarity, the Court assumes that they are. In Nevada, “an action to recover damages for 13 injuries to a person . . . caused by the wrongful act or neglect of another” has a two-year limitation 14 period. See NEV. REV. STAT. ANN. § 11.190(4)(e) (West 2025). The Parties dispute whether this 15 limitation period applies to claims for emotional distress. The Court finds that it does. 16 “When interpreting state law, federal courts are bound by the decisions of a state’s highest 17 court.” Ariz. Elec. Power Coop., Inc. v. Berkeley, 59 F.3d 988, 991 (9th Cir. 1995). “In the absence 18 of such a decision, a federal court must predict how the highest state court would decide the issue.” 19 Id. (citation omitted). Based on the Court’s review, the Nevada Supreme Court has not yet clarified 20 whether § 11.190(4)(e) applies to emotional distress claims. 21 Nevertheless, based on the plain text of the statute, the Nevada Supreme Court would likely 22 find that it does. Per its text, this limitation period covers claims for “injuries to a person.” NEV. 23 REV. STAT. ANN. § 11.190(4)(e) (West 2025). It is commonsense that emotional distress serves as 24 a personal injury. See Carey v. Piphus, 435 U.S. 247, 263 (1978) (“Distress is a personal injury 25 familiar to the law.”). Thus, this Court finds that the Nevada Supreme Court would apply this two- 26 year limitation period to claims for emotional distress. See, also, Orr v. Bank of Am., NT & SA, 27 285 F.3d 764, 781 (9th Cir. 2002) (finding that a claim for intentional infliction of emotional 28 distress is subject to § 11.190(4)(e)). 1 Based on this limitation period, the Individual Plaintiffs’ claim(s) for emotional distress 2 are untimely. In Nevada, a cause of action “accrues when the wrong occurs and a party sustains 3 injuries for which relief could be sought.” Petersen v. Bruen, 792 P.2d 18, 20 (Nev. 1990). It is 4 undisputed that Plaintiffs’ claims stem from a fire that occurred on December 21, 2018. While 5 their two-year limitation period would have originally expired on December 21, 2020, it was 6 extended until April 22, 2021, by several executive orders based on the C0VID-19 Pandemic. See 7 Dignity Health v. Eighth Jud. Dist. Ct. in & for Cnty. of Clark, 550 P.3d 341, 334 (Nev. 2024) 8 (finding that several executive directives tolled the statute of limitations for “any legal action” for 9 122 days). Plaintiffs filed suit on December 8, 2021. Therefore, they are barred from pursuing 10 claims based on emotional distress. 11 To the extent that Plaintiffs are asserting independent claims for emotional distress, the 12 Court finds that they are untimely and fail as a matter of law. Accordingly, the Court grants 13 summary judgment against them. With that being said, the Court expresses no opinion on what 14 damages are available to Plaintiffs based on their remaining claims. 15 iv. Individual Plaintiffs’ claim for damages based on their company’s lost earnings. 16 Finally, the Norcold Defendants argue that the Individual Plaintiffs lack standing to recover 17 their business’s lost earnings, and therefore they cannot recover them as a matter of law. The Court 18 agrees. 19 1. The Court declines to strike the Declaration of Traci Marx. 20 As a threshold matter, the Court addresses the Norcold Defendants’ objection to material 21 evidence produced by the Individual Plaintiffs on this issue. See Orr, 285 F.3d at 773 (A “court 22 can only consider admissible evidence in ruling on a motion for summary judgment.”); see also 23 Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) (clarifying that a court must rule 24 on evidentiary objections that are material to its ruling on summary judgment). 25 For the purposes of this motion, the Norcold Defendants object to certain portions of a 26 declaration by Plaintiff Traci Marx, where she calculates her company’s profits. See ECF No. 195- 27 1. Specifically, they argue that the declaration fails to establish her competence or personal 28 knowledge with respect to these calculations, as required by the Federal Rules of Civil Procedure. 1 See FED. R. CIV. P. 56(c)(4). The Court disagrees. 2 In her declaration, Ms. Marx expressly attests to having personal knowledge over these 3 calculations. Furthermore, the Court finds that her competence to perform these calculations can 4 be inferred from the declaration itself, which describes Ms. Marx’s extensive involvement in her 5 company’s financial affairs. See ECF No. 195-1; see also Barthelemy v. Air Lines Pilots Ass’n, 6 897 F.2d 999, 1018 (9th Cir. 1990) (“Rule 56(e)’s requirements of personal knowledge and 7 competence to testify . . . may be inferred from a [declaration itself].”). 8 Accordingly, the Court rejects the Norcold Defendants’ objection to Ms. Marx’s 9 declaration. 10 2. The Marx Plaintiffs lack standing to seek damages for their 11 company’s lost earnings. 12 Nevertheless, the Court finds that the Marx Plaintiffs do not have standing to pursue 13 damages for their company’s lost profits. 14 “The standing requirements of Article III are familiar. A plaintiff must show that (1) he or 15 she has suffered a ‘concrete and particularized’ injury to a cognizable interest, (2) which is ‘fairly 16 traceable to the challenged action of the defendant’ and (3) which likely can be redressed by a 17 favorable decision.” Nat’l Council of La Raza v. Cegavske, 800 F.3d 1032, 1039 (9th Cir. 2015) 18 (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). 19 First, the Marx Plaintiffs have failed to satisfy the injury-in-fact requirement. The 20 Individual Plaintiffs are seeking damages for losses suffered by their business: R & R Backhoe, 21 LLC. As a preliminary matter, they are not formally pursuing these losses on behalf of their 22 company. This makes sense, as they are not the proper parties to do so. See NEV. REV. STAT. ANN. 23 § 86.381 (West 2025) (“A member of a limited-liability company is not a proper part to 24 proceedings by . . . the company.”). Instead, the Marx Plaintiffs claim to be pursuing their own 25 losses, as reflected by Backhoe’s books. 26 In doing so, the Marx Plaintiffs have failed to show that they personally “suffered an injury 27 in fact that is concrete [and] particularized.” Center for Biological Diversity v. U.S. Bureau of 28 Land Mgmt., 141 F.4th 976, 1007 (9th Cir. 2025) (citation omitted). To establish damages for their 1 “loss of income” claim, the Marx Plaintiffs rely on their company’s losses—i.e., its lost income 2 and/or revenue. See ECF No. 194 at 11 (Plaintiffs’ response in opposition). But they do not explain 3 how these losses specifically affected them. For instance, the record has no evidence of the Marx 4 Plaintiffs’ corporate distributions before or after the fire. In short, it simply does not show how 5 much they personally lost vis-à-vis their company. 6 At this stage, the Marx Plaintiffs cannot satisfy the injury-in-fact requirement by merely 7 alleging that their company’s losses “rebound directly to them.” Id.; see also U.S. v. $133,420.00 8 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (citation omitted). Instead, they had to provide 9 “specific facts” by “affidavit or other evidence.” See $133,420.00 in U.S. Currency, 672 F.3d at 10 638 (citation omitted) (requiring a greater evidentiary showing for standing at the summary 11 judgment stage). At best, the Marx Plaintiffs have shown that Backhoe suffered losses after the 12 fire. This is not enough to establish their own standing to recover these losses under Article III. 13 Second, the Marx Plaintiffs have failed to establish the traceability requirement. To recap, 14 the Marx Plaintiffs are attempting to personally recover Backhoe’s losses over a three-year period. 15 See ECF No. 195-1 (declaration of Traci Marx). But the Marx Plaintiffs have done nothing to 16 show that all these losses are “fairly traceable” to the fire. Instead, they ask the Court to infer that 17 they are, even though these losses could be explained by a panoply of other causes—e.g., the 18 C0VID-19 Pandemic. Finally, the Court notes that this record would not enable a reasonable jury 19 to conclude that Backhoe’s losses across a three-year period were caused by the fire, meaning that 20 the Marx Plaintiffs cannot not recover them through their remaining claims. 21 Ultimately, since the Marx Plaintiffs lack standing to pursue Backhoe’s losses, the Court 22 grants summary judgment against their claim for these damages. 23 C. Defendant CWI, Inc’s Motion for Summary Judgment 24 Defendant CWI, Inc. moves for summary judgment against all of Plaintiffs’ claims against 25 it. The Court addresses each claim in turn. 26 i. Plaintiffs’ strict product liability claim against Defendant CWI, Inc. 27 Under Nevada law, “those who design, manufacture, distribute, or sell a dangerously 28 defective product” are subject to strict liability claims. See Hernandez v. Home Depot, Inc., 568 1 P.3d 119, 124 (Nev. 2025). It is undisputed that CWI, Inc. did not design, manufacture, distribute, 2 or sell the Refrigerator to Plaintiffs’ family members. Instead, Plaintiffs argue that CWI, Inc. 3 should be considered a “seller” for the purposes of strict liability because it installed HTS safety 4 devices on behalf of Norcold. The Court disagrees. 5 Put simply, CWI, Inc. did not sell the HTS safety devices. It installed them as part of a 6 recall campaign. Plaintiffs’ family members did not pay CWI, Inc. for these devices. Instead, 7 Norcold compensated CWI, Inc. for its labor. Based on this arrangement, CWI, Inc. was not acting 8 as a “seller of products” when it installed the HTS safety devices. See Allison v. Merck and Co., 9 878 P.2d 948, 951 n.1 (Nev. 1994) (finding that the Clark County Health District did not “sell” 10 vaccines by administering them); see also Elley v. Stephens, 760 P.2d 768, 772 (Nev. 1988) 11 (describing a seller as being “engaged in the business of selling [ ] a product”) (citation omitted). 12 After all, CWI, Inc. was not even paid for the HTS safety devices. Rather, CWI, Inc. was providing 13 an installation service on behalf of Norcold. The Nevada Supreme Court has historically declined 14 to impose strict liability on a party that merely “install[s] certain products.” Calloway v. City of 15 Reno, 993 P.2d 1259, 1272–73 (Nev. 2000) (declining to define a contractor who installed a gas 16 line as a “seller” for purposes of strict liability), superseded by statute on different grounds as 17 recognized in High-Tech Aggregate, LLC v. Pavestone, LLC, 555 P.3d 1184 (Nev. 2024). 18 Finally, the Court declines Plaintiffs’ invitation to redefine CWI, Inc. as a seller based on 19 non-binding authorities that concern sales representatives. See, e.g., Emerson v. Arctic Cat Sport, 20 Inc., No. 2:16-cv-001229-MMD-PAL, 2016 WL 6652447, at *2 (“The decisions do not stand for 21 the proposition that all sales representatives are categorically excluded from the definition of 22 sellers in NRS § 104.2103(1)(c).”). The Court need not, and will not, apply their standard to a 23 party that has not even purported to sell the specific products at issue. 24 Since CWI, Inc. did not design, distribute, manufacture, or sell the Refrigerator or the HTS 25 safety device, it is not subject to strict product liability as a matter of law. Therefore, the Court 26 grants summary judgment against Plaintiffs’ strict product liability claim against it. 27 ii. Individual Plaintiffs’ fraudulent concealment claim against CWI, Inc. 28 As above, the Court finds that the Individual Plaintiffs’ fraudulent concealment claim 1 against CWI, Inc. fails as a matter of law because CWI, Inc. did not owe them a duty to disclose. 2 See supra Part IV.B.ii. 3 Under Nevada law, a plaintiff must establish that the defendant was “under a duty to 4 disclose [a material fact]” to prevail in a fraudulent concealment claim. See Dow Chem. Co. v. 5 Mahlum, 970 P.2d 98, 110 (Nev. 1998) (citation omitted). This duty arises “from the relationship 6 of the parties,” namely a fiduciary relationship or a “special relationship.” Id. (citation omitted). 7 Parties enjoy a special relationship where one “reasonably imparts special confidence in the 8 defendant and the defendant [ ] reasonably know[s] of this confidence.” Id. (citation omitted). 9 Historically, the Nevada Supreme Court has demanded more than a mere commercial 10 transaction to find a “special relationship.” See, e.g., Mackintosh v. Jack Matthews & Co., 855 11 P.2d 549, 554 (Nev. 1993) (“The [buyers] were not only purchasing the property from [the seller], 12 but were also financing the purchase with this [seller].”). In fact, it has been reluctant to find any 13 kind of relationship between parties that were not “directly involved in the transaction from which 14 [a] lawsuit arose.” Dow Chem. Co., 970 P.2d at 111. 15 Based on the above law, the Court finds that CWI, Inc. did not owe the Individual Plaintiffs 16 a duty to disclose. Initially, these parties were not engaged in a fiduciary relationship. Furthermore, 17 the Court declines to find a “special relationship” based on their tenuous pseudo-commercial 18 connection. As noted, the Individual Plaintiffs did not purchase the RV from CWI, Inc. Rather, 19 their immediate relatives serviced it at CWI, Inc. Even if this tenuous connection somehow gives 20 rise to a commercial relationship, it does not create a duty to disclose under Nevada law. See Nev. 21 Power Co. v. Monsanto Co., 891 F.Supp. 1406, 1417 (D. Nev. 1995) (A “straightforward vendor- 22 vendee relationship . . . creates no fraud-based duty to disclose.”) (citation omitted) (cited 23 approvingly by Dow Chem. Co., 970 P.2d at 110). 24 Plaintiffs urge the Court to recognize a “special relationship” based on public policy 25 considerations. This request is misguided. It relies on authorities that deal with negligence claims. 26 See, e.g., Sparks, 255 P.3d at 244 (discussing special relationships that give rise to a duty of care). 27 The Nevada Supreme Court has already provided a more precise standard for “special 28 relationships” in the context of fraud-based claims. See id. This case does not fall into that category 1 of cases under Nevada law. 2 iii. Plaintiffs’ negligence claim against CWI, Inc. 3 To prevail on a negligence claim, “a plaintiff must establish four elements: (1) the existence 4 of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages.” Sanchez ex rel. 5 Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009) (citation omitted). CWI, Inc. 6 urges this Court to grant summary judgment against Plaintiffs’ negligence claim based on duty, 7 breach, and causation. The Court declines to do so, and addresses each of these elements in turn. 8 1. CWI, Inc. owed a duty of reasonable care. 9 “[T]he question of whether [a] defendant owes [a] plaintiff a duty of care is a question of 10 law.” Sparks, 255 P.3d at 244 (citation omitted). “[I]f this court determines that no duty exists, it 11 will affirm summary judgment.” Id. (citation omitted). 12 The Court has little difficulty concluding that CWI, Inc. owed the Individual Plaintiffs a 13 duty of care when it installed the HTS safety device. Under basic principles of tort law, a person 14 has a duty to conform to the standard of care that a reasonably prudent person in similar 15 circumstances would exercise. See Merluzzi v. Larson, 610 P.2d 739, 742 (Nev. 1980), overruled 16 on other grounds by Smith v. Clough, 796 P.2d 592 (Nev. 1990). This duty generally extends to 17 the foreseeable victims of a person’s negligence. See id. at 412–13 (citing generally Palsgraf v. 18 Long Island R. R., 248 N.Y. 339 (N.Y. 1928) (limiting a defendant’s duty to reasonably 19 foreseeable harm)). 20 When it installed the HTS safety device, CWI, Inc. had a duty to exercise the same degree 21 of care that a reasonably prudent service provider would. Furthermore, it owed this duty to the 22 Individual Plaintiffs, as the immediate family members of an RV’s owners are foreseeable victims 23 of a fire caused by the negligent installation of its safety devices. It does not matter that CWI, Inc. 24 did not directly transact with these plaintiffs. CWI, Inc. should have foreseen that its services 25 would impact their safety. See Wright v. Schum, 781 P.2d 1142, 1143 (Nev. 1989) (“One who 26 undertakes . . . to render services to another which he should recognize as necessary for the 27 protection of a third person or his things, is subject to liability to the third person for [ ] harm 28 resulting from his failure to exercise reasonable care.”). 1 2. Breach and Causation. 2 With CWI, Inc.’s duty established, the Court turns to the elements of breach and causation. 3 From the outset, the Court notes that these elements are generally “‘a question of fact for the jury,’ 4 and thus, this court is hesitant to ‘[grant] summary judgment in negligence cases.’” Sparks, 255 5 P.3d at 244 (citation omitted). Based on the record, the Court declines to do so here. 6 First, Plaintiffs have provided sufficient evidence for a jury to conclude that CWI, Inc. 7 breached its duty of care. Multiple experts explain how CWI, Inc.’s installation services failed to 8 comply with Norcold’s instructions, which Norcold described as imperative to consumer safety. 9 See, e.g., ECF No. 189-17. In his rebuttal report, Mr. Keifer claims that “[t]he existence of [an] 10 airgap” between the Refrigerator’s boiler tube and the HTS safety device’s thermocouple block 11 demonstrates its “improper installation.” Similarly, in her deposition, Ms. Petty-Galis 12 acknowledges that there appeared “to be a small gap at one side of the thermocouple saddle block.” 13 These pieces of expert evidence, in of themselves, give rise to a genuine dispute of material fact 14 regarding CWI, Inc.’s negligence in installing the HTS safety device. 15 Second, the Court also finds that there is a genuine dispute of material fact as to causation. 16 Norcold’s own words demonstrate that the improper installation of the HTS safety device could 17 result in a fire. For instance, in a March 21, 2012, letter, Norcold warns its service centers that 18 “[f]ires have resulted from the HTS not being mounted properly.” Furthermore, Ms. Petty-Galis 19 also acknowledged that a gap between thermocouple block and the boiler tube “could potentially 20 allow the boiler tube to get to a higher temperature before the power is interrupted.” Based on this 21 record, the Court cannot conclude that a reasonable jury cannot find that the negligent installation 22 of the HTS safety device caused the fire. 23 In sum, there are genuine disputes of material fact as to CWI, Inc.’s negligence and 24 causation. Accordingly, the Court declines to grant summary judgment against this claim. 25 iv. Nevada’s limitation period for personal injuries. 26 Finally, the Court declines to dismiss Plaintiffs’ remaining claim against CWI, Inc. based 27 on Nevada’s two-year limitation period for personal injury claims. See NEV. REV. STAT. ANN. 28 § 11.190(4)(e) (West 2025). Under Nevada law, this Court looks to the “true nature of [a] claim” 1 | to determine the applicable limitation period. See Stalk v. Mushkin, 199 P.3d 838, 842 (Nev. 2009) (citation omitted and emphasis added). Here, Plaintiffs are asserting a negligence claim to recover damages stemming from a fire that consumed the Individual Plaintiffs’ home. At its core, this is property-based claim. Accordingly, the Court declines to vaporize it based on the 2-year limitation 5 | period for personal injury claims. 6 7 Vv. CONCLUSION 8 For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Partial Summary Judgment, or in the Alternative for an Order Treating Specified Facts as Established (ECF No. 178) is DENIED in full. 11 IT IS FURTHER ORDERED that the Norcold Defendants’ Motion for Partial Summary 12 | Judgment (ECF No. 182) is GRANTED. The Court grants summary judgment against the 13 | Individual Plaintiffs’ claims for: negligence per se; medical expenses; damages based on an SBA loan; fraudulent concealment; emotional distress; and lost earnings. 15 IT IS FURTHER ORDERED that Defendant CWI, Inc.’s Motion for Summary Judgment 16 | (ECF No. 175) is GRANTED IN PART and DENIED IN PART. While Plaintiffs cannot rely 17 | on strict liability to proceed against Defendant CWI, Inc., they may continue to pursue their 18 | negligence claim against CWI, Inc. Finally, the Court also grants summary judgment against the 19 | Individual Plaintiffs’ fraudulent concealment claim. 20 IT IS FURTHER ORDERED that the Parties shall file a Joint Pretrial Order by 21) November 7, 2025. 22 23 DATED: September 30, 2025. _

26 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 27 28

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