Opinion
DOCKET NO. A-6122-10T3
05-28-2013
GREAT NORTHERN INSURANCE COMPANY as subrogee of DAVID and SHARON BAGATELLI, Plaintiff-Appellant, v. AM APPLIANCE GROUP, ASKO CYLINDA, ASKO APPLIANCES, INC., D'ELIA INC., CARL SCHAEDEL AND CO., INC., and THE HOME DEPOT, INC., Defendants, and GOLDMAN ASSOCIATES, OBERG & LINDQUIST, GA SERVICE CORP., R&S BUILDERS, INC., and LOMBARDI ELECTRICAL CONTRACTING COMPANY, INC., Defendants-Respondents, and GOLDMAN ASSOCIATES and GA SERVICE CORP., Third-Party Plaintiffs, v. THE HOME DEPOT, INC., Third-Party Defendant.
Daly, Lamastra & Cunningham, attorneys for appellant (John E. Lamastra, on the brief). Leary, Bride, Tinker & Moran, attorneys for respondents Goldman Associates and GA Service Corp. (David J. Dering, of counsel and on the brief). Law Offices of William E. Staehle, attorneys for respondent Oberg & Lindquist (Jeffrey W. Mazzola, on the brief). Prutting & Lombardi, attorneys for respondent R&S Builders, Inc. (George A. Prutting, Jr., on the brief). Law Offices of Stephen E. Gertler, attorneys for respondent Lombardi Electrical Contracting Company, Inc. (Mr. Gertler, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Sapp-Peterson and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1193-08.
Daly, Lamastra & Cunningham, attorneys for appellant (John E. Lamastra, on the brief).
Leary, Bride, Tinker & Moran, attorneys for respondents Goldman Associates and GA Service Corp. (David J. Dering, of counsel and on the brief).
Law Offices of William E. Staehle, attorneys for respondent Oberg & Lindquist (Jeffrey W. Mazzola, on the brief).
Prutting & Lombardi, attorneys for respondent R&S Builders, Inc. (George A. Prutting, Jr., on the brief).
Law Offices of Stephen E. Gertler, attorneys for respondent Lombardi Electrical Contracting Company, Inc. (Mr. Gertler, on the brief). PER CURIAM
Plaintiff, Great Northern Insurance Company (Great Northern), appeals from orders entered granting summary judgment dismissing its subrogation complaint against R&S Builders (R&S), Oberg & Lindquist, Lombardi Electrical Contracting Company, Inc. (Lombardi), Goldman Associates and GA Service Corp. (GA) (collectively "defendants"). We affirm.
Although the notice of appeal is from the entirety of the summary judgment orders, plaintiff advances no arguments on appeal pertaining to Goldman Associates. We therefore deem abandoned any appeal issue with respect to this defendant. The other defendants against whom plaintiff asserted claims were also dismissed by summary judgment at various times during the litigation.
The facts, viewed most favorably towards plaintiff, Brill v. Guardian Life Insurance Company of North America, 142 N.J. 520, 524 (1995), disclose that Great Northern issued an insurance policy to David and Sharon Bagatelle insuring their newly-constructed home, which they moved into in 2001. A fire erupted in the home on July 27, 2004 that originated from the dryer, an ASKO T-700 model. The home was completely destroyed as a result of the fire. Great Northern paid the Bagatelles over one million dollars to settle their claim and then unsuccessfully sought reimbursement from a number of parties, including R&S, the builder; Lombardi, the electrical contractor, Oberg & Lindquist, from whom the Bagatelles purchased the dryer, and GA, who serviced the dryer. It then commenced a subrogation action against defendants.
Because David and Sharon share the same last name, we refer to Sharon throughout this opinion by her first name. In doing so, we intend no disrespect.
According to the architectural plans, the washer and dryer were to be installed on the second floor of the home, with the dryer being placed closest to the outside wall, and the washer installed furthest from the outside wall. In addition, the plans called for installation of a 230-volt electrical outlet for the dryer. However, when installed, the architect's specifications were not followed, as the washing machine was placed next to the outside wall, and the dryer furthest from the outside wall.
Eight months after the Bagatelles moved into the home, Ralph Lombardi, Lombardi's principal, conducted a post-construction walkthrough. During this walkthrough, he noticed the dryer vent "was popped out the back of the house" and lint was stuck in the vent. He told Sharon she needed to "do something with that." The dryer was serviced in November 2003, after Sharon reported that it was very loud. A GA technician replaced the bearing and belt. The nature of the repairs performed would have required the technician to remove the vent tubing and back panel. Following this repair, the Bagatelles heard no further loud noises until July 27, 2004. On that day, Sharon called for service, and while waiting for the repair person to arrive, she saw a glow coming from underneath the dryer. The fire that ensued destroyed the home.
In her deposition, Sharon testified she "personally always clean[ed] the lint filter after every load[,]" she knew the exhaust hose went to the outside of the house, and that "it [could] get clogged at the flap on the outside of the house" but she also knew how to "troubleshoot that." She explained she would look to determine whether steam was coming out because that's a "give-away." In addition, she stated "[d]ryers generally do not heat up if they're clogged going to the outside. The clothes will come out damp. So that also has to be cleaned on a probably yearly basis." She never, however, personally cleaned the exhaust hose and never observed anything prior to the fire that led her to believe it needed to be cleaned.
The Bagatelles purchased the dryer from Oberg & Lindquist. According to the invoice for the dryer, Oberg was not responsible for installation or maintenance. The dryer was installed prior to the Bagatelles moving into their new home. R&S denied installing the dryer, as did Lombardi.
Plaintiff's expert, Donald R. Phillips, P.E., opined that the fire was caused by
a combination of the switching of the position of the washing and drying units during the construction of the house, improper selection of materials during the installation of the dryer, and a failure of the G.A. Service Corp. technician to
adequately service, repair, diagnose, and remedy defective readily observable dangerous conditions, such as the improper venting hose and identify the lint [buildup] inside the machine.
Phillips also expressed the opinion that the exhaust hose was too long and its length violated 2000 IRC (NJ) Section G2437.5 (613.6) regulations. Further, he stated that the use of a vinyl exhaust hose, as opposed to a metal hose, did not comply with the UL 2158A standard. He explained that "[t]he installation and service manual printed by ASKO stated the dryer venting at a minimum should be in accordance with UL-CSA approved exhaust hose. The only UL approved exhaust hose for dryers is UL 2158A, and white vinyl flexing hose does not meet that standard." He opined further:
International Residential Code
Underwriters Laboratories
Underwriters Laboratories/Canadian Standards Association
With[in] a reasonable degree of engineering and scientific certainty, based on the observations and analysis contained herein, it is the opinion of National Forensic Engineers, Inc. that [the] cause of the dryer fire at the Bagatelle residence was the result of lint [buildup] in the chassis and vent tubing of the ASKO T-700 dryer. It is also the opinion of National Forensic Engineers, Inc. that one of the causes of the excessive lint [buildup] was due to the improper placement of the dryer in accordance to the original building plans that caused excessive back pressure and loss of airflow from the dryer's exhaust vent.
The excess exhaust vent length[,] in violation of 2000 IRC (NJ) Section G2437.5 (613.6) regulations[,] caused restrictive back pressure in the dryer's vent system. This allowed lint to leak out of seals in the drum and vent connections, ultimately building up dangerously inside the dryer's chassis and causing higher than normal temperatures in the area of the heating elements and rear drum bearing. This condition was evidence[d] by a premature failure of the rear drum bearing and drive belt in approximately only two years of service. In addition, it is the opinion of National Forensic Engineers, Inc. that the ASKO T-700 Dryer was installed against recommended manufacturer's instructions that led to the premature failure of the rear bearing and caused excess lint to accumulate inside the chassis of the dryer. The use of unapproved UL materials[,] as outlined by ASKO[,] and failure to follow the 2000 IRC (NJ) Section G2437.5 (613.6) regulations and the manufacturer's duct length restrictions resulted in a hazardous and dangerous condition that caused a fire and damage to the Bagatelle residence. Lastly, it is the opinion of National Forensic Engineers, Inc. that G.A. Service Corp. failed to recognize, remedy, and warn the Bagatelle[]s of the dangerous condition that would have been openly obvious to a skilled authorized technician that the wrong type of dryer vent tubing was used during the original installation and was not in accordance to UL 2158A manufacturer's specified vent material which had been in effect since the year 2000 according to IRC codes. The failure to replace and fix the vent tubing allowed lint to continually build up and resulted in the dryer to catch on fire and damage the Bagatelle residence.
In granting summary judgment to defendants, Judge Vincent LeBlon found: (l) plaintiff's expert's opinion that the GA serviceman was negligent because he failed to properly clean the excessive lint from the tubing was an inadmissible net opinion and there was no competent evidence in the record to support the claim that GA's alleged negligent repair proximately caused the fire, and plaintiff failed to establish that the serviceman had a duty to address the vinyl tubing while performing the repairs; (2) there was no evidence Oberg & Lindquist installed the dryer; (3) plaintiffs failed to establish that Lombardi Electrical installed the dryer contrary to recommended manufacturer's instructions. The present appeal followed.
Plaintiff raises the following points on appeal:
POINT I
THE DEFENDANT R&S BUILDERS WAS NEGLIGENT AND BREACHED DUTIES ESTABLISHED BY CONTRACT.
POINT II
PLAINTIFF HAS PROVIDED AMPLE EVIDENCE TO ESTABLISH A CAUSE OF ACTION IN TORT AGAINST R&S BUILDERS.
POINT III
LOMBARDI ELECTRIC NEGLIGENTLY INSTALLED THE DRYER AT THE BAGATELLE[S'] RESIDENCE AND AS A RESULT CAUSED THE SUBJECT FIRE.
A. LOMBARDI ELECTRIC NEGLIGENTLY PLACED THE DRYER IN [THE] WRONG LOCATION.
B. LOMBARDI ELECTRIC NEGLIGENTLY INSTALLED THE 230[-]VOLT ELECTRICAL OUTLET FOR THE DRYER.
C. LOMBARDI ELECTRIC NEGLIGENTLY INSTALLED VINYL EXHAUST TUBING WHICH LED TO THE SPREAD OF THE FIRE.
D. LOMBARDI ELECTRIC FAILED TO RECOGNIZE AND REMEDY A KNOWN FIRE HAZARD DURING THE "[WALKTHROUGH]" INSPECTION.
POINT IV
GA SERVICE CORPORATION NEGLIGENTLY SERVICED THE BAGATELLE[S'] DRYER AND AS A RESULT PROXIMATELY CAUSED THE FIRE.
POINT V
ISSUES OF FACT REMAIN AS TO WHETHER OBERG & LINDQUIST INSTALLED THE SUBJECT DRYER.
Orders granting summary judgment pursuant to Rule 4:46-2 are reviewed de novo, and we apply the same legal standard employed by the Law Division. Canter v. Lakewood of Voorhees, 420 N.J. Super. 508, 515 (App. Div. 2011). We consider, as did the motion court, "'whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Advance Hous., Inc. v. Twp. of Teaneck, 422 N.J. Super. 317, 327 (App. Div. 2011) (quoting Brill, supra, 142 N.J. at 540), certif. granted, 209 N.J. 100 (Jan. 24, 2012)). Similarly, when the legal conclusions of a motion court's Rule 4:46-2 summary judgment decision are reviewed on appeal, "'[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[,]' and, hence, an 'issue of law is subject to de novo plenary appellate review[.]'" Estate of Hanges v. Metro. & Prop. Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010)).
We are satisfied the motion judge properly concluded plaintiff failed to raise genuinely disputed issues of fact sufficient to withstand summary judgment and we affirm substantially for the reasons expressed by Judge LeBlon in his April 25, 2011 opinion. We add the following brief comments.
We first address the arguments advanced in Points IV and V related to defendants Oberg & Lindquist and GA. The fact that Lombardi Electric denied installing the dryer does not create a genuinely disputed issue of fact sufficient to defeat Oberg & Lindquist's summary judgment motion. Brill, supra, 142 N.J. at 529 (explaining that a genuinely disputed issue of fact means "a non-moving party cannot defeat a motion for summary judgment merely by pointing to any fact in dispute"). Oberg & Lindquist's representative testified during a deposition that the dryer was dropped off and the invoice stated, "DROP OFF [-] NO INSTALLATION." Neither plaintiff, R&S nor Lombardi presented any competent evidence demonstrating otherwise.
As for GA, plaintiff contends GA's representative, Alexander Manno, testified that in order to change the belt on the dryer, the technician would have to remove the exhaust tubing from the back of the dryer and, in doing so, the technician would have the opportunity to see the vinyl tubing and clean the dryer vent. In addition, Manno testified a technician is required, as part of servicing any dryer, to check for excessive lint buildup, particularly if there is a "bearing situation." He explained:
Our responsibility is to repair the product, that's our main drive. And once he's repairing the product, we are to advise the customer of any issues that we see other than the product itself. So in the course of repairing a bearing, just by the nature of that repair, you have access to look at a part of the exposed dryer vent, depending on where it's going, into the wall or what have you, and the back of the dryer which that vent is attached to is baffling in there that directs air and you would see lint in that. So just by opening up this, lint would just be there and most of it would just fall out of the vent or the back of the dryer.
The fact that a fire erupted eight months later does not establish the technician failed to follow protocol during the service call in November 2003. Significantly, Phillips testified during his deposition that he did not know whether GA's technician removed lint while performing the bearing repair. Although he concluded excessive lint caused the fire, he could not determine how much lint was present in the vinyl tubing in November 2003 when the technician serviced the dryer and, if present, that the technician failed to remove the lint. Nor was he able to offer an opinion as to the level of lint present in the dryer at the time of the fire. Neither in his report nor in his deposition did Phillips explain how the presence of lint in the exhaust tube after the fire was indicative of excessive lint in the dryer before the fire erupted. Moreover, plaintiff failed to establish a duty owed by GA to the Bagatelles to address the vinyl tubing. Phillips merely testified that the white vinyl flexible tubing was not authorized, without presenting any facts to support this contention.
The scope of the duty owed by repair personnel to a client is narrower than that owed by a manufacturer or rebuilder. Lally v. Printing Mach. Sales & Serv. Co., Inc., 240 N.J. Super. 181, 186 (App. Div. 1990). A manufacturer has a duty to take reasonable steps to notify purchasers of a danger, even if the danger was not recognized or recognizable at the time the machine was manufactured. Feldman v. Lederle Labs., 97 N.J. 429, 456-57 (1984). On the other hand, repair personnel only face liability if the service itself is negligently performed. Lally, supra, 240 N.J. Super. at 186. GA was called to address a noisy dryer and determined that there was a need to replace the bearing and belt. Although Manno testified that the responding technician would be responsible for inspecting machines for certain other problems and for addressing any problems discovered during the service call, there is no evidence the technician observed any problems. Thus, Judge LeBlon properly granted summary judgment to GA.
Turning to R&S, as the builder, it bore overall responsibility to ensure that the Bagatelles' home was constructed in accordance with the architectural plans. Daidone v. Buterick Bulkheading, 191 N.J. 557, 568 (2007) (noting that "in most cases, a plaintiff retains a general contractor responsible for the entire construction project, including the coordination of trades and sub-contractors, and that general contractor remains on the job - retaining overall responsibility for the furnishing of construction services — until the construction project is completed"). The construction contract between R&S and the Bagatelles stated that "construction shall be in accordance with drawings and specifications of the architect . . . ." It is undisputed that the construction contract called for the dryer to be placed nearest the outside wall. Thus, there is no dispute that R&S failed to install the dryer in accordance with the architectural plans. The critical question is whether the failure was causally related to the resulting fire. In the absence of a causal connection between the location of the dryer and the resulting fire, liability may not be imposed upon R&S as the builder or Lombardi as the installer. See Kuzmicz v. Ivy Hill Park Apartments, Inc., 147 N.J. 510 (1997) (noting that the causal connection between the landlord's alleged negligence in failing to secure a fence and the resulting injury to the tenant was insufficient to impose liability as a matter of law).
For purposes of summary judgment, Lombardi admitted installing the dryer.
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Judge LeBlon answered the question in the negative. The judge first observed that plaintiff could not withstand summary judgment based upon Phillips' opinion that the exhaust vent length violated the 2000 New Jersey IRC because this standard was not in effect at the time the dryer was installed. The judge noted that Phillips "was unable to conclude when the IRC of 2000 became effective. However, every other expert in the case agrees that it became effective in 2003."
The judge next referenced Phillips' contention that the ASKO T-700 dryer was installed against recommended manufacturer's instructions, leading to the premature failure of the rear bearing and the accumulation of excess lint inside the chassis of the dryer. Judge LeBlon concluded plaintiff failed to raise a disputed issue of fact as to this contention because there were only three ninety-degree bends fitted in the hose, which was less than the recommended maximum of four ninety-degree bends fitted in a hose, and that the hose was only extended eighteen feet, two feet less than the twenty-foot maximum recommended extension.
We agree that a standard governing the length of the exhaust vent that was not in effect at the time of the fire should not establish the basis for imposition of negligence without more. See Ball v. N.J. Bell Tel. Co., 207 N.J. Super. 100, 113 (App. Div. 1986) (rejecting the argument that a deviation from a statutory provision not in effect at the time of the actionable event is proof of negligence). We further agree it is undisputed the bends in the fitted hose did not exceed the recommended ninety degrees or the maximum number of four and also that the hose length did not exceed the recommended twenty-foot maximum. Thus, these claimed failures did not provide a basis upon which to deny defendants' summary judgment motions.
Judge LeBlon did not specifically address Phillips' additional claim that the white vinyl tubing was not an approved exhaust hose for the dryer. Based upon our de novo review of the record, this contention lacks merit.
According to Phillips' report, "[t]he installation and service manual printed by ASKO stated the dryer venting at a minimum should be in accordance with UL-CSA approved exhaust hose. The only UL approved exhaust hose for dryers is UL 2158A, and white vinyl flexible hose does not meet that standard."
When deposed and making references to the Use and Care Guide (Guide), Phillips was relying upon instructions contained in a Guide for ASKO dryers other than the T-700, which was the dryer model purchased by the Bagatelles and destroyed in the July 27, 2004 fire. The Guide for the T-700 does state that the "consumer or installer must purchase a UL-GSA-approved exhaust hose." Nor is there any reference to a UL 2158A exhaust hose in the Guide. Therefore, beyond Phillips' statement in his report that a UL 2158A exhaust hose should have been used, the record is devoid of any evidence to support this contention. A meritorious motion for summary judgment will not be defeated by "[b]are conclusions" unsupported by a factual basis. U.S. Pipe & Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App. Div. 1961).
To summarize, the record established, without dispute, that the dryer was not placed in accordance with the architectural plans, but that undisputed fact, standing alone, was insufficient to defeat summary judgment. The record indisputably established the exhaust tubing did not exceed the recommended length and bends. The 2000 IRC (NJ) Section G2437.5 (613.6), upon which plaintiff's expert based his opinion that the exhaust tube length was too long, was not in effect at time the dryer was installed in the Bagatelles' home. Further, the record contained no evidence that there had been a buildup of lint in the exhaust tube prior to the fire. Nor did plaintiff's expert provide a factual basis from which it could be established or inferred that the presence of lint in the exhaust tube after the fire erupted in the dryer is evidence there was excessive lint in the exhaust tube.
Indeed, the record discloses that on the very day of the fire, Sharon heard the same noise she heard eight months earlier, which, upon inspection at that time, required replacement of the belt and bearing. There was no evidence in the record from the November 2003 service record that the problem with the dryer was excessive buildup of lint in the exhaust tube. What emerges from the record is the fact of the fire, followed by theories of negligence unsupported by competent evidence sufficient to raise genuinely disputed issues of fact. When viewed in the light most favorable to plaintiff, the record fails to raise genuinely disputed issues of fact sufficient to defeat summary judgment.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION