United States District Court, D. Massachusetts
PREFERRED MUTUAL INSURANCE CO. as subrogee of Ingo and Daria Dutzmann, Plaintiff,
BARROS COMPANY, INC., and GENERAC HOLDINGS INC., Defendants.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR
Dennis Saylor IV United States District Judge.
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.
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.
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?
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). 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.
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.
and for the following reasons, the motion for summary
judgment will be granted in part and denied in part.
following facts are as set forth in the record and are
undisputed except as noted.
Installation of the Generator
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.
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.).
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).
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).
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).
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.). It is undisputed that Barros
and Propane Plus did not consider whether falling snow or ice
could damage the piping. (Id. at 101).
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).
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).
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). 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.).
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.).
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).
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).
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.
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
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
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).
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 ...