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Groschopf v. Health Insurance Risk Sharing Plan

United States District Court, E.D. Wisconsin

December 4, 2014

JOHN A. GROSCHOPF and SUE GROSCHOPF, Plaintiffs,
v.
HEALTH INSURANCE RISK SHARING PLAN, Involuntary Plaintiff,
v.
THE SPORTSMAN'S GUIDE, INC., NORTHERN TOOL & EQUIPMENT CATALOG COMPANY, INC., NORTHERN TOOL & EQUIPMENT CATALOG COMPANY, INC. /b/a THE SPORTSMAN'S GUIDE, INC., ABC INSURANCE COMPANY, and DEF INSURANCE COMPANY, Defendants

For John A Groschopf, Sue Groschopf, Plaintiffs, Cross Defendants: Eric M Knobloch, Steven D Gruber, Timothy S Knurr, LEAD ATTORNEYS, Gruber Law Offices LLC, Milwaukee, WI.

For Health Insurance Risk Sharing Plan, Involuntary Plaintiff, Cross Claimant: Matthew Robert Falk, Falk Legal Group LLC, Milwaukee, WI.

For The Sportsman's Guide Inc, Northern Tool & Equipment Catalog Company Inc, Northern Tool & Equipment Catalog Company Inc, doing business as The Sportsman's Guide Inc, Defendants: Patrick J Rooney, Peter A Carlson, LEAD ATTORNEYS, Donald Chance Mark, JR, Fafinski Mark & Johnson PA, Eden Prairie, MN.

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ORDER

J.P. Stadtmueller, United States District Judge.

The plaintiffs, John A. Groschopf and Sue Groschopf, initiated this suit on December 18, 2013, in the Milwaukee County Circuit Court. On January 14, 2014, the defendants, Northern Tool & Equipment Catalog Company, Inc. (" Northern Tool" ), Northern Tool & Equipment Catalog, Company, Inc., d/b/a The Sportsman's Guide, Inc., The Sportsman's Guide, Inc. (" TSG" ), Smith Industries, LLC (" Smith Industries" ) and Gemini Insurance Company (" Gemini Insurance" ), removed the suit to this Court where it was randomly assigned to this branch. (Docket #1). The plaintiffs assert both negligence and strict liability claims against the defendants for a range of alleged deficiencies in the design,

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warnings, and instructions associated with the product Sure Shot. (Docket #1-1, ¶ ¶ 14-31). Several motions for summary judgment have been filed and fully briefed in this matter. (Docket #28, #35, #55, and #121). On December 1, 2014, defendants filed a Motion to Amend/Correct the Scheduling Order (Docket #120) along with a Motion for Summary Judgment Based on the Plaintiffs' Pierringer Release[1] of Smith Industries and Gemini Insurance (Docket #121), which are now fully briefed and the Court will address in detail below.[2]

As an initial matter, the Court notes that on November 4, 2014, the parties submitted a voluntary stipulation of dismissal as to defendants Smith Industries and Gemini Insurance. As such the Court adopted the parties' stipulation and dismissed Smith Industries and Gemini Insurance on November 10, 2014. (Docket #98).

Secondly, the defendants argue that Northern Tool should be dismissed as an improper party. The plaintiffs concede this argument in their Opposition and concur that Northern Tool should be dismissed, with prejudice, as an improper party. (Docket #37 at 2 n.1). Thus, the Court will dismiss Northern Tool from this action.

Finally, the timeliness of defendants' Motion to Amend/Correct the Scheduling Order is at issue. The deadline for summary judgment in this case was September 15, 2014. (Docket #22). The present motion for summary judgment was filed over two months late and only two weeks before trial. Ordinarily, the Court would be loathe to consider a motion filed so close to trial. Nonetheless, in this instance the Court will consider the motion for two reasons. First, the issue did not present itself until the defendants received notice of the Pierringer Release on October 16, 2014, well after the deadline for summary judgment had passed, and the defendants cannot be faulted for not raising it earlier. Second, and most importantly, in the event that defendants' Motion for Summary Judgment has merit, the continuation of the lawsuit would be futile, such that the plaintiffs could only recover an award from themselves. The Court declines to waste precious judicial resources on a futile lawsuit. Finding it appropriate to grant the defendants' Motion for Summary Judgment (Docket #121), the Court will deny the defendants' Motion to Amend/Correct the Scheduling Order (Docket #120) as moot.

1. FACTUAL BACKGROUND[3]

This case arises out of an incident that occurred on August 24, 2013. Plaintiff John Groschopf " (Groschopf" ) alleges he suffered an injury when a product he purchased from defendant TSG in 2011, called Sure Shot Exploding Rifle Targets (" Sure Shot" ), exploded while he was using it. As a result of the explosion, Groschopf alleges

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catastrophic physical and emotional injuries. (Groschopf Aff. at 4, ¶ 12). Defendant TSG is an online and catalog retailer of outdoor sports products that has been in existence since 1997. (Glowaski Decl. at ¶ 2). Smith Industries manufactured Sure Shot and Gemini Insurance insured Smith Industries. (Smith Industries and Gemini Insurance Answer and Affirmative Defenses) (Docket #9).

Defendant TSG began selling Sure Shot in August 2010 after it entered into a vendor's agreement with Smith Industries dated August 16, 2010 (" Vendor's Agreement" ). (Smith Dep. at 197:12-19; Meyer Dep. at ...


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