Nationwide Mutual Fire Insurance Co. v. Gas, 070816 PASUP, 2953 EDA 2015

Docket Nº:2953 EDA 2015
Opinion Judge:MUNDY, J.
Party Name:NATIONWIDE MUTUAL FIRE INSURANCE COMPANY A/S/O RONALD STRUNK, Appellant v. MODERN GAS, Appellee.
Judge Panel:BEFORE: BOWES, J., MUNDY, J., and PLATT, J.
Case Date:July 08, 2016
Court:Superior Court of Pennsylvania
 
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NATIONWIDE MUTUAL FIRE INSURANCE COMPANY A/S/O RONALD STRUNK, Appellant

v.

MODERN GAS, Appellee.

No. 2953 EDA 2015

Superior Court of Pennsylvania

July 8, 2016

Appeal from the Order August 19, 2015 In the Court of Common Pleas of Monroe County Civil Division at No(s): No. 5667-CV-2011

BEFORE: BOWES, J., MUNDY, J., and PLATT, J. [*]

OPINION

MUNDY, J.

Appellant, Nationwide Mutual Fire Insurance Company a/s/o Ronald Strunk (Nationwide), appeals from the August 19, 2015 order granting summary judgment against it on its breach of contract and negligence claims. After careful review, we reverse.

The facts and procedural history of this case are as follows. Nationwide provided a fire and commercial general liability insurance policy to Strunk. Nationwide's Complaint, 7/29/11, at ¶ 2. The policy insured Strunk's commercial real estate building. Id. at ¶ 4. Strunk leased the first floor of the building to Mike Coppola, who operated his restaurant, Coppola's Pizzeria, in the space. Id. The pizzeria contained two pizza ovens, which ran on liquid propane.

On August 31, 2009, Modern Gas serviced the pizza ovens because the oven did not turn on when the pilot was lit. Id. at ¶ 5. An invoice from that date indicates that Modern Gas cleaned the pilot and adjusted the thermocouple. Nationwide's Memorandum of Law in Opposition to Modern Gas's Motion for Summary Judgment, 8/14/15, at Exhibit D. The next day, Modern Gas returned because a "fire ball came out of oven." Id. Modern Gas "vacuume [sic] oven and clean burners." Id. The invoice indicated "[t]here was a leak @ ¾ union. I fixe [sic] it." Id.

On September 28, 2009, a fire started in the pizzeria, caused by a malfunction of the gas pizza ovens. Nationwide's Complaint, 7/29/11, at ¶ 6. The fire caused damages in the amount of $158, 811.03. Id. at ¶ 8. Pursuant to the insurance policy, Nationwide covered the loss and paid those damages to Strunk. Id. at ¶ 9.

On July 29, 2011, Nationwide brought this subrogation action against Modern Gas, seeking to recover the $158, 811.03 that it paid to Strunk. Id. at ¶ 9. Nationwide's complaint contained two counts, one for breach of contract, and one for negligence. Relevant to this appeal, the complaint averred that Modern Gas was negligent in various ways, including failing to inspect the oven, improperly repairing the oven, and failing to perform a leak test after it completed the repairs. Id. at ¶ 16.

Nationwide retained an expert, Michael Zazula, an engineering consultant at IEI Consulting, Inc. In October and December of 2009, and March and April of 2015, Zazula examined the pizza ovens and their components four times to determine the cause of the fire. In his April 22, 2015 report, prepared following his inspections, Zazula explained that, in December 2009, he examined the oven and "determined the pilot valve for the top oven was open, allowing [gas to] flow through the pilot, regardless of whether or not there was a flame present on the thermocouple." Zazula Report, 4/22/15, at 4.1 Zazula further noted that "[t]his condition would reveal itself as a leak within the oven, near the pilot, when a leak test was conducted." Id. On April 16, 2015, Zazula conducted radiograph testing to determine the cause of the leak in the pilot valve. Id. at 5. "The radiographs clearly revealed the valve was disassembled and a screw was inserted into the pilot valve to forcibly keep the valve open to allow gas flow." Id. Zazula concluded, "to a reasonable degree of engineering and scientific certainty, " that "Modern [Gas]'s failure to properly conduct a leak test, consistent with the [National Fire Protection Association (NFPA)] 54 standard, 2 is the primary cause of the incident[.]" Id. at 6. Further, Zazula opined that "[h]ad Modern [Gas] complied...

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