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Penn-America Insurance Company v. Bay State Gas Co.

Appeals Court of Massachusetts, Plymouth

December 20, 2019

PENN-AMERICA INSURANCE COMPANY[1]
v.
BAY STATE GAS COMPANY[2]

         Argued October 10, 2019.

         [138 N.E.3d 455] CIVIL ACTION commenced in the Superior Court Department on July 11, 2016, The case was heard by Gregg J. Pasquale, J., on a motion for summary judgment.

         William E. Gericke, of Pennsylvania (Patrick J. Loftus, III, also present) for the plaintiff.

         Michael R. Byrne for the defendant.

         Present: Wolohojian, Blake, & Englander, JJ.

          OPINION

         BLAKE, J.

          Following a natural gas fire that caused extensive damage to a building that Penn-America Insurance Company (Penn-America) insured, Penn-America brought this action, as subrogee for its insured (King Street Realty Trust), against the building’s natural gas supplier, Bay State Gas Company, doing business as Columbia Gas of Massachusetts (Columbia Gas). The primary issue

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before us is whether the statute of repose bars Penn-America’s claim that Columbia Gas failed to maintain its more than fifteen year old equipment and thereby caused the fire. On Columbia Gas’s motion for summary judgment, a judge of the Superior Court ordered judgment in favor of Columbia Gas after concluding that Penn-America’s claim was time barred. Because we disagree, we vacate the judgment.

         Background .

         We summarize the facts contained in the summary judgment record in the light most favorable to Penn-America. See Barrasso v. New Century Mtge. Corp., 91 Mass.App.Ct. 42, 43, 69 N.E.3d 1010 (2017). The history of this case dates back to 1996, when Columbia Gas installed a natural gas service line for a building located at 59 Lone Street in Marshfield (the building). That installation included a riser pipe that came out of the ground near the building and a gas meter fit that was attached to the riser pipe through a high-pressure valve. The riser pipe was not secured to the building or otherwise supported. Columbia Gas continued to own this equipment even after it was installed. Over the next two decades, Columbia Gas sometimes had occasion to inspect, repair, or replace its equipment located at the building, including once in [138 N.E.3d 456] 1998 when it repaired or replaced the natural gas service line, and another time on September 5, 2014, when Columbia Gas responded to a report of a gas leak.

          Then, a natural gas fire caused extensive damage to the building on February 16, 2015, amidst record-setting snowstorms. While the cause of the fire remains in dispute, there is evidence that the weight of snow caused the gas meter fit to break above the high-pressure valve, from which gas leaked and then ignited. Penn-America brought this negligence action alleging that, prior to the fire, Columbia Gas had occasion to see how its equipment had been installed and had "fail[ed] to detect and/or correct" problems associated with that installation. In opposing Columbia Gas’s motion for summary judgment, Penn-America clarified that this portion of its claim was based on Columbia Gas’s continuing duty to maintain its equipment in compliance with State and Federal regulations, which required Columbia Gas to install supports for the riser pipe no later than September 5, 2014. Penn-America further alleged that Columbia Gas failed to warn of the dangers posed by its incorrectly installed equipment and, in particular, that the weight of snow and ice could cause its equipment to break.

          Discussion .

         1. Failure ...


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