United States District Court, D. Massachusetts
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT
Gail Dein United States Magistrate Judge
plaintiff alleges that on January 23, 2015, the water supply
line at a home owned by its insured, Anne Davis, in
Gloucester, Massachusetts, froze and ruptured, causing in
excess of $700, 000.00 in damages at the property. The house
was unoccupied at the time. Great Northern Insurance Company
(“Great Northern”) insured the property, and paid
the property damage claim. It brings this action as the
insured's subrogee against Eastern Propane Gas, Inc.
(“Eastern Propane”), the entity that provided
propane gas to heat the property. The Complaint sounds in
negligence and breach of contract.
Propane provided liquid propane gas to the home on an
automatic basis. The gas tank was empty by the time the
property damage was discovered. It is Great Northern's
theory that Eastern Propane either miscalculated or otherwise
failed to deliver the amount of propane necessary for the
property, and the home ran out of gas. As a result, according
to Great Northern, the pipes froze and ruptured, causing the
damage at issue. For its part, Eastern Propane's expert
will testify that first the pipes froze and burst due to
weather conditions, and then the hot water continued to leak
out until the propane in the tank was depleted.
matter is presently before the court on the motion of Eastern
Propane for “Summary Judgment on the Plaintiff's
Action Seeking Consequential Damages” (Docket No. 32).
Therein, Eastern Propane argues that even assuming Great
Northern's theory is correct, and the pipes froze because
the tank ran out of propane gas, it cannot be liable due to a
provision in the contract it had with the homeowners.
Specifically, the contract provides that “[i]n
recognition that the depletion of the supply of LP gas at the
Location varies with the usage demands of the Customer[s] . .
. Eastern cannot and does not assume responsibility and is
not accountable for the exhaustion of the LP Gas supply at
the Location, or the consequences of its exhaustion, direct
or indirect.” Great Northern contends that the contract
provision has no application to the instant case, where the
customer's needs did not fluctuate, but rather Eastern
Propane allegedly miscalculated or simply failed to deliver
the amount of fuel that should have been delivered.
consideration of the written and oral arguments of the
parties, the motion for summary judgment is ALLOWED IN PART
and DENIED IN PART. This court concludes that the breach of
contract claim is barred by the above quoted provision.
However, Great Northern may maintain an action against
Eastern Propane for negligence in connection with calculating
or delivering the proper amount of fuel that was needed at
STATEMENT OF FACTS
action involves a house in Gloucester, Massachusetts. The
house originally was owned by James S. Davis, who sold it to
his wife Anne Davis for $1.00 on December 8, 1997. DF
¶¶ 1, 3. It was a summer vacation home and rarely
occupied. Pl. Mem. (Docket No. 37) at 1. There was a
caretaker hired to maintain and safeguard the property. DF
October 25, 1999, the property owners entered into a contract
with Eastern Propane entitled “Terms and Conditions of
and for the Delivery and Supply of Liquified Petroleum Gas
and Related Equipment and Parts” (the
“Contract”). DF ¶ 4; Def. Ex. C. The parties
agree that this is the only contract at issue in this
litigation, that this is the contract that governs the supply
of liquefied petroleum gas (“LP”) to the
property, and that this is the contract on which
plaintiff's breach of contract claim is
based. The parties also agree that the
defendant's customers had the option of having Eastern
Propane automatically deliver propane gas to their property
on a schedule the company established based on its
calculation of amounts of gas that would be needed, or the
homeowner could request specific deliveries, or there could
be some combination of the two. See Pl. Mem. at 4-5.
It is undisputed that Eastern Propane was to automatically
deliver gas to the Davis propery.
the Contract makes no mention of when gas would be delivered,
or of an automatic delivery schedule, or of any obligation on
the part of Eastern Propane to calculate the amount of gas
that would be needed. Rather, the Contract focuses on the
equipment being provided by Eastern Propane. The only
references to gas delivery in the one page document are as
undersigned has requested Eastern Propane Gas, Inc.
(“Eastern”) to provide liquefied petroleum gas
(“LP Gas”) and the following related equipment
and parts (“Equipment”) to Jim Davis the
Customer(s) at: 12 Mt. Locust Place Gloucoster [sic] MA
Eastern will or has provided the LP Gas to the Customer(s) on
a sale basis, the price being that established by Eastern and
prevailing on the date of sale.
In recognition that the depletion of the supply of LP gas at
the Location varies with the usage demands of the
Customer(s), and that the Customer's(s') usage
demands will fluctuate in relation to the
Customer's(s') fuel requirements, Eastern cannot and
does not assume responsibility and is not accountable for the
exhaustion of the LP Gas supply at the Location, or the
consequences of its exhaustion, direct or indirect.
I/We, the undersigned Customer(s), acknowledge that I/we have
read and received a copy of the foregoing terms and
conditions and agree that they accurately and fully represent
the contractual understandings relating to the matters
Def. Ex. C (emphasis added). Thus, there are no references in
the Contract to the automatic supply or delivery of LP gas.
It is undisputed that Mr. and Mrs. Davis are sophisticated
business people. DF ¶ 7. ...