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Preferred Mutual Insurance Co v. Barros Co. Inc.

United States District Court, D. Massachusetts

August 20, 2018

PREFERRED MUTUAL INSURANCE CO. as subrogee of Ingo and Daria Dutzmann, Plaintiff,
v.
BARROS COMPANY, INC., and GENERAC HOLDINGS INC., Defendants.

          MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          F. Dennis Saylor IV United States District Judge.

         This is an action for negligence and breach of warranty arising from a gas explosion at a residence. Plaintiff Preferred Mutual Insurance Co. is the subrogee of Ingo and Daria Dutzmann. On the evening of March 11, 2015, the Dutzmanns' gas generator leaked propane into their basement. The gas ignited, causing an explosion and destroying their home.

         The amended complaint alleges that defendants Generac Holdings, Inc., the manufacturer of the generator, and Barros Company, Inc., the company that installed that generator, negligently caused the explosion. It also alleges that defendants breached the implied warranty of merchantability and breached their contract with the Dutzmanns.

         Defendants have moved for summary judgment. The negligence claims can be distilled down to two sets of questions. First, what was the cause of the explosion? Plaintiff contends that it was falling ice that ruptured the gas line, while defendants contend that the cause remains unknown. Second, if falling ice indeed caused the explosion, should Generac's installation manual have explicitly warned of that risk? And, even if Barros's installation complied with all governing regulations, should it have taken additional measures to protect the generator system from falling ice?

         The parties have provided competing expert reports on these issues. Defendants have requested to strike plaintiff's expert reports, contending that they are unreliable and should be excluded under Fed.R.Evid. 702 and Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993).[1] Because plaintiff has set forth sufficient evidence on which its experts relied, the request will be denied. As to the competing expert reports, there are disputed issues of material fact requiring that the negligence claims proceed to trial. Because a defendant cannot be found to have been negligent without also having breached the implied warranty of merchantability, the motion will also be denied as to the warranty claim.

         However, the amended complaint does not identify any contract between the parties that could have been breached. Therefore, summary judgment will be granted as to the breach of contract claim.

         Accordingly, and for the following reasons, the motion for summary judgment will be granted in part and denied in part.

         I. Background

         A. Factual Background

         The following facts are as set forth in the record and are undisputed except as noted.

         1. Installation of the Generator

         Ingo and Daria Dutzmann purchased a home at 24 Laneway Street (the “property”) in Taunton, Massachusetts, in 1993. (Ingo Dutzmann Dep. Vol. I at 15). The property was insured by Preferred Mutual Insurance Co.

         In 2004 or 2005, the Dutzmanns installed a propane range in their kitchen. (Id. at 32). A company called Propane Plus installed a small propane tank that fed the range on the south side of the house. (Id.).

         In 2010, the Dutzmanns hired Barros to install a generator manufactured by Generac on the north side of the house. (Barros Dep. at 26-27). Kevin Lehane, a now-former employee of Barros, installed the gas piping for the generator. (Lehane Dep. at 8). Propane Plus installed two larger tanks, 100 gallons each, on the north side of the house to fuel the generator. (Ingo Dutzmann Dep. Vol. I at 32; Barros Dep. at 28, 42). Barros had, however, recommended what size tanks to use and marked where on the ground they should go. (Barros Dep. at 42-43).

         The generator was installed more than ten feet away from the tanks and more than five feet from the bulkhead, as required by applicable building codes. (Lehane Dep. at 11-12, 27). It was placed on a four-by-four-foot bed of crushed stone. (Barros Dep. at 43).

         About ten to fifteen feet of black iron piping ran from the propane tanks. (Id. at 107-08). The plumbing code required supports for the piping at least every eight feet. (Id. at 107). Despite the short distance of the pipe, four roughly equidistant supports were installed. (Id. at 107-08). In addition, a one-foot flexible hose was used to connect the iron piping to the generator in order to minimize vibrations that could cause a breach in the piping. (Id. at 88).

         The piping was not installed underground because the piping only went a short distance and it was close to the house. (Id. at 112). In addition, underground installation is more expensive. (Id.).[2] It is undisputed that Barros and Propane Plus did not consider whether falling snow or ice could damage the piping. (Id. at 101).[3]

         The piping installation was approved by the Taunton plumbing and gas inspector. (Lehane Dep. at 47; Bibby Dep. at 13). The Taunton Fire Department separately approved the installation of the tanks. (Johnson Dep. at 87).

         2. The Explosion

         In 2013, the Dutzmanns had hired a contractor to perform mold remediation in their upstairs bedroom. (Ingo Dutzmann Dep. Vol. I at 45). The mold remediation project was finished by March 11, 2015, but the Dutzmanns had not yet moved back into the bedroom. (Id. at 46).

         Over the past few winters, Ingo Dutzmann had observed ice dams on the roof of the property. (Id. at 38). He testified that he would periodically use a pole to knock down icicles. (Id. at 38-39, 49, 54). During the winter of 2014-15, he accidentally cracked a window while trying to knock down icicles, and decided to discontinue the practice. (Id. at 53-54).[4] He had never observed falling snow or ice in the area of the generator or propane tanks. (Ingo Dutzmann Dep. Vol. II at 31). Nor had he encountered any problems with the generator, other than having to restart it on two prior occasions during snowstorms. (Id.).

         According to the National Oceanic and Atmospheric Administration, on the date of the explosion, March 11, 2015, the Taunton area was covered by between 20 and 39 inches of snowpack. (Ellison Report at 21). In addition, the area had experienced significant temperature fluctuations over the previous week, making “significant melting and refreezing of snow and ice” possible. (Id.).

         The Dutzmanns' son, Alexander, was also living at the property with his wife, Amy. (Alexander Dutzmann Dep. at 12). At 1:15 a.m. on March 11, 2015, Alexander returned home after a late music rehearsal. (Id. at 50). He soon noticed an “overwhelming smell of gas.” (Id. at 52). He woke Ingo, who was sleeping on the couch in the living room, and asked whether he could smell anything. (Id.). Ingo replied that he could not smell anything. (Id. at 53).

         At that point, Alexander went into the kitchen to check that the range was off. (Id.). After confirming that the range was off, he noticed that the smell of gas was not as strong as it had been in the living room. (Id.). Ingo suggested that the smell was caused by a dead animal in the crawl space. (Id. at 53-54).

         Alexander then went upstairs to the second floor, where the smell of gas was much weaker. (Id. at 54). About twenty minutes later, he got in the shower, and seconds later he heard a huge explosion. (Id. at 55). The power and water immediately went out, and the entire family quickly evacuated. (Id.). Although the Taunton Fire Department arrived, the house was almost totally destroyed. Fortunately, none of the Dutzmanns were injured.

         3. The Investigations

         Two days later, on March 13, 2015, Ingo met with the Taunton Deputy Fire Chief, Michael Sylvia. (Ingo Dutzmann Dep. Vol. II at 107). Sylvia attended the Massachusetts Firefighting Academy and is one course shy of an associate's degree in fire science from Bristol Community College. (Sylvia Dep. at 8).

         Sylvia investigated the fire's cause and origin for somewhere between 30 and 90 minutes. (Id. at 60). Sylvia theorized that when Alexander turned on the hot water for his shower, the water heater ignited propane gas in the basement. (Ingo Dutzmann Dep. Vol. II at 106-07). Sylvia noted that the piping for the generator had been severed. (Sylvia Dep. at 25-26). He concluded that “[a] portion of ice accumulation on the roof fell and ruptured the propane gas line, running along the house from the tank to the emergency generator.” (Id. at 28). He based this conclusion on his observation that “[i]t was the only area where there was any gas that could have caused the explosion.” (Id.). However, he could not recall whether Ingo had told him that there was ice falling from the roof the day before the explosion. (Id. at 79).

         Sylvia shared his theory with Ingo at approximately 7:30 a.m., after which he performed no additional investigation. (Id. at 55). The Fire Department report ultimately concluded that:

A portion of ice accumulation on the roof fell and ruptured the propane gas line running along the house from the tanks to the emergency generator. The leaking gas entered the foundation and accumulated in the basement, when the oil fire heating system that also provided hot water came on it ignited the mixture and caused the explosion. The State Fire Marshals Office also responded, Trooper Michael Fagen, as well as Michael Hennessy hired by the insurance carrier.

(Pl. Ex. 5 at 11).

         Preferred Mutual's first cause-and-origin investigator, Michael Hennessy, also spoke with Ingo at approximately 9:00 a.m. that day. (Hennsesy Dep. Vol. I at 29, 110). Hennessy had been a lieutenant with the Woburn Fire Department between 1976 and 1993, and has worked for NEFCO Fire Investigations for more than two decades as a fire analyst. (Hennessy Report at 4). His handwritten notes indicated that Sylvia had informed him that someone, likely Alexander Dutzmann, had heard ice falling recently. (Hennsesy Dep. Vol. I at 26). Hennessy recalled Ingo stating that he had knocked down icicles the day before the explosion. (Id. at 34). His notes specifically stated, “that day knocked down icicles. No. spill. Did not hit pipe. Tuesday 9:00 a.m. starting to get warmer.” (Id.). Ingo then told Hennessy that he believed ...


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