Metropolitan Property & Cas. v. Harper

• Decision Date: 07 June 2000
• Citation: 168 Or. App. 358,7 P.3d 541
• Parties: METROPOLITAN PROPERTY & CASUALTY, a corporation, Appellant, v. John S. HARPER, an individual, dba Nomad Designs; and All City Electric, Inc., an Oregon corporation, Respondents.
• Court: Oregon Court of Appeals

7 P.3d 541

168 Or. App. 358

METROPOLITAN PROPERTY & CASUALTY, a corporation, Appellant, v. John S. HARPER, an individual, dba Nomad Designs; and All City Electric, Inc., an Oregon corporation, Respondents.

(97CV0645; CA A104220)

Court of Appeals of Oregon.

Argued and Submitted March 8, 2000.

Decided June 7, 2000.

Glenn Barger argued the cause for appellant. On the brief were Stephen L. Madkour, Portland, and Smith, Freed, Heald & Chock, P.C.

James A. Wallan, Medford, argued the cause for respondent John S. Harper dba Nomad Designs. With him on the brief were Benjamin M. Bloom and Hornecker, Cowling, Hassen & Heysell, L.L.P.

Mark D. Clarke, Medford, argued the cause for respondent All City Electric, Inc. With him on the brief were Frederick H. Lundblade and Frohnmayer, Deatherage, Pratt, Jamieson, Clarke & Moore, P.C.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

Argued and Submitted March 8, 2000, at McMinnville.

BREWER, J.

Plaintiff Metropolitan Property and Casualty (Metropolitan) appeals from a final judgment entered in this breach of contract and negligence action, arising from a fire that destroyed its insureds' residence. Metropolitan asserts that the trial court erred in granting partial summary judgment in favor of defendant All City Electric, Inc. (All City), in directing verdicts in defendants' favor on Metropolitan's remaining claims, and in granting defendants' motion to substitute Metropolitan as plaintiff in place of its insureds. We affirm in part and reverse and remand in part.

In 1994, Michael and Nancy Holcomb purchased a house in Gold Beach and procured a homeowners insurance policy from Metropolitan covering the residence. In August 1994, the Holcombs entered into a written contract with defendant John S. Harper, a general building contractor, to make various structural modifications and to renovate the electrical and plumbing systems of the residence. Harper subcontracted the electrical work to All City. In late November or early December, Harper asked All City to provide a space heater in order to facilitate the drying of newly hung sheetrock. All City delivered and connected a heater directly to the circuit panel in the basement. Harper used the heater almost continuously for 24 hours a day during the three weeks leading up to December 31. In the early morning hours of December 31, a fire destroyed the residence. The Holcombs made a claim for the resulting loss on their homeowners policy, and Metropolitan paid the claim. As part of the consideration for settlement of the claim, the Holcombs executed a written agreement releasing Metropolitan from any potential claims arising from the fire and subrogating to Metropolitan their rights against third parties relating to the fire.

In November 1997, Metropolitan filed this action against defendants in the Holcombs' name, alleging that defendants negligently caused the fire. The amended complaint alleged:

"On or about December 31, 1994, a fire caused damage to [the Holcombs'] property. The cause of the fire was the negligence of defendants Harper * * * and All City Electric, in that they failed to exercise reasonable care in one or more of the following:

"(a) In placing an electrical heater too close to combustibles;

"(b) In failing to inspect, or monitor the heater to ensure that it could be operated safely;

"(c) In leaving the premises and the heater unattended and unsupervised while the heater remained operating;

"(d) In failing to ensure that the heater was property equipped with a thermostat to prevent the unit from overheating;

"(e) In failing to ensure that the heater was property [sic] placed to prevent the heater from tipping over;

"(f) In failing to ensure that the heater was property [sic] equipped with a `trip-switch' to prevent the heater from operating if it has tipped over;

"(g) In failing to properly connect the heater to the electrical panel and by using an inappropriate breaker to power the heater."

Before trial, All City moved for summary judgment with respect to all specifications of negligence asserted against it in the amended complaint. While that motion was pending, Harper and All City each moved for an order substituting Metropolitan as the party plaintiff. Metropolitan also moved for leave to file a second amended complaint that, among other changes, included a breach of contract claim against Harper based on a provision in Harper's written agreement with the Holcombs stating that "[c]onstruction will be completed in a timely and workmanlike manner * * *." The trial court granted summary judgment in All City's favor on all specifications of negligence except for subparagraph (a), substituted Metropolitan for the Holcombs as plaintiff, and granted Metropolitan's motion to amend its complaint.¹

At the conclusion of Metropolitan's case in chief at trial, Harper moved for a directed verdict on the contract claim, arguing that the contract claim was, in reality, a disguised tort claim and, therefore, did not state a separate claim for breach of contract. The trial court granted the motion. Both defendants then moved for a directed verdict on Metropolitan's remaining negligence specifications. The trial court also granted those motions, concluding that "[Metropolitan] had failed to offer legally sufficient evidence of causation to submit [those] claim[s] to the jury." The court entered final judgment in accordance with its rulings.

On appeal, Metropolitan first argues that the trial court erred in granting partial summary judgment to All City with respect to the specifications of negligence contained in subparagraphs (b) through (g) of the amended complaint. We assess the summary judgment record in the light most favorable to the nonmoving party in order to determine whether a genuine issue of material fact exists and, if not, whether the moving party was entitled to judgment as a matter of law. ORCP 47 C (1997)²; See Jones v. General Motors Corp., 325 Or. 404, 939 P.2d 608 (1997)

. The summary judgment record includes affidavits and other evidence in support of, and in opposition to, the motion. Id. at 412, 939 P.2d 608.

In opposing summary judgment, Metropolitan submitted an affidavit pursuant to ORCP 47 E, wherein its attorney stated that "[Metropolitan has] retained an unnamed qualified expert who is available and willing to testify to admissible facts or opinions creating a question of fact." Metropolitan contends that the affidavit created genuine issues of material fact with respect to each of the negligence specifications, thus precluding summary judgment. All City responds that the affidavit created triable issues of fact with respect to subparagraph (a) only.

ORCP 47 E permits a party to avoid summary judgment on any genuine issue of material fact that may be proved by expert opinion evidence, by submitting an affidavit from the party's attorney stating that an "expert has been retained and is available and willing to testify to admissible facts or opinions that would create a question of fact." Brownstein, Rask, Arenz v. Pearson, 166 Or.App. 120, 125, 997 P.2d 300 (2000) (quoting Moore v. Kaiser Permanente, 91 Or.App. 262, 265, 754 P.2d 615, rev den 306 Or. 661, 763 P.2d 152 (1988)). Accord Stotler v. MTD Products, Inc., 149 Or.App. 405, 943 P.2d 220 (1997)

. Unless the affidavit specifies otherwise, the trial court must presume that the expert will testify on every issue on which summary judgment is sought. Id. at 409, 943 P.2d 220. However, if the party chooses to "enumerate the issues on which the expert will testify * * * the enumeration must give notice of all elements on which an expert may testify" because the opposing party and the trial court may otherwise reasonably infer that there will be no expert testimony on other elements. Moore, 91 Or.App. at 265,

754 P.2d 615.

As noted, the attorney's affidavit averred that Metropolitan had "retained an unnamed qualified expert who is available and willing to testify to admissible facts or opinions creating a question of fact." The affidavit did not enumerate the issues on which the expert would testify; thus, the trial court was entitled to infer that Metropolitan's expert would testify to material facts relating to each of the specifications of negligence in the amended complaint. Notwithstanding its breadth, All City asserts that the affidavit's effect was limited by Metropolitan's memorandum opposing summary judgment because the memorandum specifically enumerated the issues on which the expert would testify and did not refer to the allegations in subparagraphs (b) through (g) of the amended complaint. We disagree.

Metropolitan referred to the affidavit in its memorandum only once, stating that, "plaintiffs submit their attorney's affidavit pursuant to ORCP 47 E, stating that plaintiffs are prepared to submit expert testimony stating that the heater was placed too close to combustibles." All City's attorney asserted in the summary judgment hearing that

"[t]he evidence is that their expert will testify—I think they cited in this in their response—regarding placement of the heater near combustibles. That goes to [a]llegation—their first allegation under [subparagraph (a)].

"So * * * if the [c]ourt finds that they've offered some genuine issue of material fact based upon their expert testimony on [subparagraph (a)], I think partial summary judgment might be appropriate in [subparagraphs (b) through (g)]."

In response, Metropolitan's attorney argued that

"[t]he attorney affidavit submitted in compliance with ORCP 47 E states that we have retained an unnamed qualified expert who is available and willing to testify to admissible facts or opinions creating a question of fact.

"That basically mirrors the language of the rule itself and we certainly have experts on board who are going to testify concerning more than just the placement of the heater and more than just the heater's being the alleged source of the cause and source...