Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Greater New York Mutual Insurance Co. v. Lavelle Industries, Inc.

United States District Court, D. Massachusetts

June 6, 2016

GREATER NEW YORK MUTUAL INSURANCE COMPANY a/s/o SAINT PAUL ARMS CONDOMINIUM ASSOCIATION, Plaintiff,
v.
LAVELLE INDUSTRIES, INC., Defendant, and TOTO U.S.A., INC., Defendant and Third-Party Plaintiff,
v.
ERIK DEUTSCH and JULIE HONG, Third-Party Defendants.

         MEMORANDUM AND ORDER RE: THIRD-PARTY DEFENDANTS ERIK DEUTSCH AND JULIE HONG’S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 73); DEFENDANT LAVELLE INDUSTRIES, INC.’S MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 75); DEFENDANT/THIRD PARTY PLAINTIFF, TOTO U.S.A., INC.’S MOTION FOR LEAVE TO FILE MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 80)

          MARIANNE B. BOWLER UNITED STATES MAGISTRATE JUDGE

         Pending before this court is: (1) a motion for leave to file a summary judgment motion filed by defendant Lavelle Industries, Inc. (“Lavelle”) (Docket Entry # 75); (2) a second summary judgment motion filed by third-party defendants Erik Deutsch (“Deutsch”) and Julie Hong (“Hong”) (Docket Entry # 73); and (3) a motion for leave to file a summary judgment motion filed by defendant and third-party plaintiff Toto U.S.A., Inc. (“Toto”) against plaintiff Greater New York Mutual Insurance Company (“GNY” or “plaintiff”) (Docket Entry # 80). The foregoing parties filed the above motions more than ten months after the June 15, 2015 deadline to file dispositive motions. Trial is set to commence on July 25, 2016 in this case, which is now more than three years old.

         BACKGROUND

         This subrogation action arises out of a water leak originating in a toilet in unit 403 of the Saint Paul Arms Condominium building (“the St. Arms building”) in Brookline, Massachusetts that took place in September 2010. (Docket Entry # 58, ¶ 1). On January 25, 2013, GNY, after allegedly paying a claim filed by its insured, the St. Arms Association, for the property damage to the St. Arms building, filed a complaint against Toto and Lavelle (“defendants”) setting out breach of warranty and negligence claims. (Docket Entry # 1). The toilet is a “Toto toilet Model CST854 equipped at the time of manufacture with a fill valve manufactured by Lavelle.” (Docket Entry # 1, ¶ 9) (Docket Entry # 7, ¶ 9). On March 2, 2015, this court allowed Toto leave to file a third-party complaint against Deutsch and Hong, former residents and owners of unit 403. An amended third-party complaint filed on April 7, 2015 sets out two contribution claims, one against Deutsch and the other against Hong.

         On April 26, 2016, Deutsch and Hong filed the second summary judgment motion on the contribution claims brought against them by Toto in the third-party complaint. (Docket Entry # 73). They filed their first summary judgment motion on August 20, 2015 on the same contribution claims based on an argument that a good faith settlement with GNY extinguishes the contribution claims under Massachusetts General Laws chapter 231B, section four. (Docket Entry ## 51, 51-8). The second summary judgment motion raises the same argument and adds, as an exhibit, a complete copy of the settlement agreement.

         Deutsche and Hong did not file the settlement agreement to support the first summary judgment motion. Rather, they filed an affidavit which stated, “The plaintiff and Third-Party Defendants have reached a settlement for the sum of $5, 000.00.” (Docket Entry # 44). They did not include the settlement agreement “due to a desire not to make it a document of public record.” (Docket Entry # 51-8, n.3). The explanation is not convincing for two reasons. First, Deutsch and Hong easily could have filed a motion for leave to file the settlement agreement under seal when they filed the first summary judgment motion. Second, the fact that they filed the settlement agreement with the second summary judgment motion on the court’s publically accessible docket makes their explanation questionable, at best.

         On April 29, 2016, Lavelle filed its motion for leave and an attached summary judgment motion based on plaintiff’s expert reports and March 2016 depositions of Richard D. Mansfield (“Mansfield”) and Shaun L. McKenna (“McKenna”), plaintiff’s experts. (Docket Entry # 75). Lavelle submits that Mansfield and McKenna “are unable to state with any reasonable degree of scientific certainty when during the nearly three year period between manufacture and the date of loss the retaining clips failed; or how the clips failed; or why the clips failed.” (Docket Entry # 75). Two weeks later, Toto filed its motion for leave to file its summary judgment motion. Relying on Mansfield’s and McKenna’s recent deposition testimony, Toto grounds the summary judgment motion on the inability of McKenna and Mansfield to opine with a reasonable degree of scientific certainty when, how and why the retaining clips on the valve failed. (Docket Entry ## 80, 80-2, 80-3).

         The first two expert reports by Mansfield and McKenna dated September 24 and October 15, 2010 focused on a failure of the cracked retaining clips that secured “the outer adjustable half of the valve to the inner shaft.” (Docket Entry # 75-4, pp. 30, 40). Upon inspection after the water leak, the “two plastic tabs” holding the outer adjustable half of the valve to the inner shaft were “at the bottom of the tank.” (Docket Entry # 75-4, p. 40). The former report states that the plastic retaining clips “cracked possibly during manufacture, shipping, ” installation or adjustment and concludes that the clips “could have cracked at any time during the manufacture and handling over the last 2-3 years.” (Docket Entry # 75-4, p. 30). Plaintiff represents that it produced these two reports to Lavelle and Toto on August 24, 2014.

         An August 2015 summary report by Mansfield and McKenna narrows the timeline and refers to hairline cracks or fractures as opposed to cracks insofar as it states that, “Damage, including hairline cracks, may occur at many points during the manufacture/shipping of the parts, assembly/manufacture/shipping of the valve, and installation of the valve.” (Docket Entry # 75-4, p. 64). It concludes that, “The cause of the broken tabs is apparent hairline fractures . . . during manufacture . . ., valve assembly . . ., installation of the valve into the Toto toilet, and/or shipment . . ..” (Docket Entry # 75-4, p. 68). In a December 2015 supplemental report, Mansfield and McKenna did not alter their “opinion of the cause of the failure.” (Docket Entry # 75-4, p. 59).

         Destructive testing of the valve took place in September 2015. Mansfield’s and McKenna’s depositions took place in March 2016. Excerpts of the depositions reflect an inability to identify exactly when the retaining clips failed and excerpts of McKenna’s deposition indicate an inability to opine how and why the clips failed.

         Notably, the deadline to file a summary judgment motion was June 15, 2015. (Docket Entry # 18). This court established the deadline at a status conference on May 28, 2014 when it adopted the parties’ Local Rule 16.1(d) joint statement. (Docket Entry # 18). As a result, this court set the following deadlines: joinder of additional parties and amendments to the pleadings (August 26, 2014); fact discovery (November 28, 2014); expert disclosures by plaintiff (December 31, 2014); expert disclosures by defendants (February 13, 2015); dispositive motions (June 15, 2015); and “trial readiness” (September 15, 2015). (Docket Entry ## 17, 18). As explained below, although this court changed a number of these deadlines, the June 15, 2015 deadline for dispositive motions did not change and remains in effect.

         Specifically, on October 2, 2014, this court extended the deadline to complete fact discovery to February 14, 2015. (Docket Entry # 21). On January 14, 2015, this court extended the deadline for plaintiff’s and defendants’ expert disclosures to March 31, 2015 and April 17, 2015 respectively. (Docket Entry # 23). Two weeks later, Toto filed the motion for leave to file the third-party complaint because discovery in the fall of 2014 uncovered a basis for the contribution claims against Deutsche and Hong. (Docket Entry # 25, pp. 2-4). Toto’s supporting memorandum correctly noted that, “The parties appeared before this Court on May 28, 2014 for a Rule 16 Scheduling Conference” and “the Court endorsed the proposed discovery schedule included in the parties’ Joint Statement Pursuant to Local Rule 16.1(D) (see Docket No. 18).”[1] (Docket Entry # 25, p. 2).

         At a March 2, 2015 hearing, this court allowed the motion (Docket Entry # 24). (Docket Entry # 31). During the hearing, Deutsche and Hong’s counsel referenced the aforementioned August 26, 2014 deadline for joining additional parties established when this court adopted the Local Rule 16.1 joint statement. As noted above, the joint statement adopted by this court included the June 15, 2015 deadline for dispositive motions. (Docket Entry ## 17, 18). During the hearing, Deutsche and Hong did not request any additional time to file a dispositive motion. Instead, they sought additional time to conduct discovery. Accordingly, this court allowed them an additional 60 days, i.e., until April 14, 2015, to complete discovery. This court also advised the parties that the case needed to be tried by the end of the year.

         On April 3, 2015, Deutsche and Hong filed an assented-to motion to amend the discovery plan in light of their recent joinder as third-party defendants. (Docket Entry # 38). The motion did not request an extension of the June 15, 2015 deadline for filing dispositive motions. On April 6, 2015, this court allowed the motion thereby establishing new deadlines for: fact discovery (July 31, 2015); plaintiff’s expert disclosures (August 14, 2015); defendants’ expert disclosures (September 15, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.