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Pacific Indemnity Co. v. Pola

United States District Court, D. Massachusetts

December 15, 2014

PACIFIC INDEMNITY COMPANY, as subrogee of Peter I. Higgins and Bonnie H. Higgins, Plaintiff,
v.
GIOVAN C. DALLA POLA, Individually and doing business as GDP PAINTING, Defendant

For Pacific Indemnity Company, As subrogee of Peter I. Higgins and Bonnie H. Higgins, Plaintiff: Andrea Cortland, LEAD ATTORNEY, PRO HAC VICE, Cozen O'Connor, Philadelphia, PA; James P. Cullen, Jr., LEAD ATTORNEY, Cozen & O'Connor, Philadelphia, PA; Patrick J. Loftus, III, Law Offices of Patrick Loftus, Boston, MA.

For Giovan C. Dalla Pola, Individually, doing business as GDP Painting, Defendant: Joseph T. Doyle, Jr., Matthew W. Perkins, LEAD ATTORNEYS, Lecomte, Emanuelson & Doyle, Quincy, MA.

Page 297

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO EXCLUDE OPINION OF PLAINTIFF'S EXPERT AND FOR SUMMARY JUDGMENT

Judith Gail Dein, United States Magistrate Judge.

I. INTRODUCTION

This subrogation action arises out of a fire that occurred on August 25, 2011 at the home of Peter I. Higgins and Bonnie H. Higgins. At the time of the fire, the Higginses' property was insured by the plaintiff, Pacific Indemnity Company (" Chubb" ). After Chubb made payments to the homeowners under the terms of their policy, it brought this action, as subrogee of Mr. and Mrs. Higgins, against Giovan C. Dalla Pola (" Dalla Pola" ), a house painter who had been performing painting and carpentry work at the property shortly before the fire broke out. Chubb claims that the fire was caused by the spontaneous combustion of materials that had been left in the garage by Dalla Pola's painting crew. By its complaint, Chubb has asserted claims against Dalla Pola individually, and doing business as GDP Painting, for negligence and breach of contract.

The matter is presently before the court on the " Defendant's Motion to Exclude Plaintiff's Expert Opinion and Motion for Summary Judgment" (Docket No. 32). By his motion, Dalla Pola is requesting an order excluding the opinion of Chubb's expert witness, Thomas Klem (" Klem" ), regarding the origin and cause of the fire, and granting him judgment as a matter of law on both of the plaintiff's claims against him. Dalla Pola contends that Klem's testimony attributing the cause of the fire to the plaintiff's painting company is inadmissible because it is based on factual assumptions that have no support in the evidentiary record. He further argues that there is no evidence, other than Klem's inadmissible opinion, to show that he or any of his workers were responsible for the fire. Accordingly, Dalla Pola contends that summary judgment is warranted in his favor.

For all the reasons detailed below, this court finds that the record contains evidentiary support for Klem's opinion, and that the defendant's challenge to his testimony raises issues of credibility rather than admissibility. Thus, while Dalla Pola may attempt to discredit Klem's testimony through the use of evidence and cross-examination at trial, his motion to exclude the opinion of plaintiff's expert and for summary judgment is DENIED.

II. STATEMENT OF FACTS[1]

The following facts are undisputed unless otherwise indicated.

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As described above, this case arises out of a fire that occurred on the morning of August 25, 2011 at the home of Peter and Bonnie Higgins in Lincoln, Massachusetts. (DF ¶ 9; Pl. Ex. A at 1). Earlier that summer, the Higginses had hired Dalla Pola and his company, GDP Painting, to perform painting and carpentry work at their residence. (Id. ¶ 1; Pl. Ex. B at 18). The plaintiff claims that the fire was caused by the spontaneous combustion of materials that the defendant improperly and carelessly stored or discarded inside the Higginses' two-car garage, and it is seeking to hold the defendant liable for over $1.9 million in damages. (See Compl. (Docket No. 1) ¶ ¶ 9-10; Def. Mem. (Docket No. 36) at 1).

By the time the fire occurred, Dalla Pola and his crew had been working at the insureds' home on and off for several months. (DF ¶ 3). As part of that work, the defendant and his employees were responsible for painting the home's exterior, repairing rotten boards on the back deck, sanding and staining a wooden staircase on the outside of the house, and sanding and staining a wooden walkway adjacent to the garage. (DF ¶ 2; Pl. Ex. A at 4; Pl. Ex. B at 18). Both Peter and Bonnie Higgins observed that Dalla Pola maintained a tidy operation, and neither of them remembered seeing any rags or bags of sawdust lying in the garage where the painters stored their supplies and equipment. (See DF ¶ ¶ 4-8; Def. Ex. 1 at 10, 35; Def. Ex. 2 at 28-29, 31). Nevertheless, the record contains facts showing that the fire originated inside the garage, in the area that was used by the painters.

Events Surrounding the Fire

On August 24, 2011, the day before the fire, Marcus Pereira (" Pereira" ), one of Dalla Pola's employees, was working at the Higginses' property. (DF ¶ ¶ 28, 30). Pereira was responsible for painting and power washing at the insureds' home, but he did not perform any carpentry work. (DF ¶ 31). The parties agree that Pereira was the last member of Dalla Pola's work crew to leave the property prior to the outbreak of the fire. (DF ¶ 34; PA ¶ 32). As detailed below, statements attributed to Pereira immediately following the fire provide factual support for Klem's opinion regarding the likely source of the fire.

The record indicates that the Higginses' 13-year old son, Harrison, was at home on the day before the fire waiting for the painters to complete their work so he could leave the house to visit a friend. (DF ¶ ¶ 10-11, 14). While he was waiting, Harrison observed one of the painters carrying materials out of the garage and loading them into his vehicle. (Def. Ex. 3 at 14-18). Although Harrison was not able to identify the painter by name, the record indicates that it must have been Pereira, since he was the last worker from the defendant's company who was on the property that day. (See id. at 14; DF ¶ 34). After the worker left the job site, Harrison went into the garage to retrieve his bike. (DF ¶ 18). Harrison did not notice any rags, trash bags or spills during the brief period of time when he was in the garage. (See id. ¶ ¶ 20-25, 27; Def. Ex. 3 at 39-40; Def. Ex. 4). Nor did he see anything that appeared to be out of place, or smell any open cans of paint or stain. (DF ¶ ¶ 26-27).

The fire occurred at approximately 5:00 a.m. on August 25, 2011. (See Pl. Ex. A at 11). Members of the Lincoln Fire Department

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responded to the Higginses' home and were able to put out the fire. (See id. at 3). Nevertheless, the incident caused heavy smoke damage throughout much ...


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