Bituminous Fire & Marine Ins. Co. v. Culligan Fyrprotexion, Inc.

• Decision Date: 28 July 1982
• Docket Number: No. 1-1180A333,1-1180A333
• Citation: 437 N.E.2d 1360
• Court: Indiana Appellate Court
• Parties: BITUMINOUS FIRE & MARINE INSURANCE CO. and Don Chance Construction Management, Plaintiffs-Appellants, v. CULLIGAN FYRPROTEXION, INC., Defendant-Appellee.

Page 1360

437 N.E.2d 1360

BITUMINOUS FIRE & MARINE INSURANCE CO. and Don Chance

Construction Management, Plaintiffs-Appellants, v. CULLIGAN FYRPROTEXION, INC., Defendant-Appellee.

No. 1-1180A333.

Court of Appeals of Indiana,

First District.

July 28, 1982.

James L. Crawford, Sacopulos, Crawford & Johnson, Terre Haute, for plaintiffs-appellants.

Richard R. McDowell, Hill, Fulwider & McDowell, P. C., Indianapolis, for defendant-appellee.

NEAL, Judge.

Bituminous Fire & Marine Insurance Co. (Bituminous) and Don Chance Construction Management (Chance) appeal adverse judgments in the Vigo Superior Court, Division 2, in their suit for damages against Culligan Fyrprotexion, Inc. (Culligan). The procedural history of the case is as follows: Bituminous, a subrogee of Chance for money paid to Chance on its insurance contract for water damage, initiated this suit to recover the amount of its payment, incidental expenses, attorney fees, and punitive damages. It proceeded against Culligan, a subcontractor of Chance, on the multiple theories of (1) breach of contract, (9) negligence, (3) res ipsa loquitur, and (4) implied warranty. Chance intervened, but the trial court granted Culligan's motion to dismiss Chance's complaint because he was not the real party in interest, having been paid in full, and having assigned all his rights to Bituminous. Prior to trial, the court further granted Culligan's motion for summary judgment on issues of attorney fees, punitive damages, and incidental expenses, thereby limiting Bituminous' possible recovery to the amount actually paid Chance. Trial was had by jury, and at the close of all of the evidence the trial court further withdrew issue (1) breach of contract and issue (3) res ipsa loquitur from the jury. The jury verdict was in favor of Culligan on the remaining issues. Although this is not clear, it appears that Chance's sole issue on appeal is alleged error in dismissing his intervenor's complaint. Bituminous principally challenges the court's decision to withdraw issues (1) and (3) from the jury, and grant summary judgment on the issues of punitive damages, attorney fees, and incidental expenses.

We reverse in part and affirm in part.

STATEMENT OF THE FACTS

Chance was the general contractor for the construction of an addition to the Canterbury Convalescent Center in Terre Haute, Indiana. On September 9, 1975, Culligan subcontracted with Chance to install a "dry pipe" system of automatic sprinklers for fire protection in the Center. In accordance with the contract, Culligan designed and installed the system according to plans which had received the prior approval of Chance, the State Fire Marshal, and the Indiana Rating Bureau. Culligan furnished all labor and material for the system. The construction involved running pipes horizonally above the ceiling in the attic; sprinkler heads were then suspended from "T" fittings in the pipes. The sprinkler heads came through the ceiling and hung below it. Air pressure of 30 to 40 pounds per square inch was maintained by a compressor in the pipes. The system was designed so that if a fire occurs and the temperature rises sufficiently, the sprinkler heads melt, the air escapes, the drop of pressure trips the system, and water enters the system under pressure and is sprayed on surrounding surfaces. The water flow in turn triggers an alarm. A "dry pipe" system can be used even in freezing temperatures.

The installation of the sprinkler system was commenced as soon as the building was framed and enclosed from the weather. The system was substantially finished before the interior was completed and before the ceiling was installed. After the ceiling was in place, the sprinkler heads were installed. Other mechanical contractors, such as heating, plumbing, electrical, and air conditioning, performed their work at approximately the same time and place as Culligan's sprinkler contract was being performed. These other contractors were substantially finished in the attic by the time the sprinkler system was complete. The only major job remaining after Culligan had completed its work was that of blowing insulation into the attic with a hose, a job which required the presence of a man in the attic. Other contractors may have done some minor things in the attic after that time. After the ceiling was installed, the attic was accessible only through a folding staircase in the ceiling. After completion, the system was tested for leaks or other malfunction under 200 pounds of pressure per square inch for two hours in the presence Three or four days prior to February 7, 1976, Chance's construction superintendent, Ed Stoops, heard air escaping from a sprinkler head and notified Culligan's foreman, Bill Deakins, who, with a workman, Stephen Ray Fuson, proceeded to remedy the problem. They let the air out of the system, then replaced the sprinkler head with a "drop," which is a short length of pipe with a cap or plug on the end of it. The workmen used a 14 to 18 inch pipe wrench to screw the "drop" into the "T" fitting in the pipe that had held the faulty sprinkler head. Thereafter the drop hung down below the ceiling as the sprinkler head had done. This work was accomplished from a ladder below the ceiling, and neither Fuson or Deakins entered the attic, or inspected the "T". Air was then put back into the system, and no further leaks were found. The leaking sprinkler head was found to be bent from some unknown cause, though Fuson speculated that it was bent in shipment or unpacking.

of Chance's foreman. The tests were successful and received the approval of Chance's construction superintendent. Thereafter the system was drained. There was evidence that the area was not locked, and other workmen, nurses, and even patients were seen there. Sometime in December 1975, the system was put into use, though it had not been accepted by Chance or the owner, nor had it been inspected by the appropriate state agencies.

On February 7, 1976, when the area was nearly ready for occupancy, large amounts of water escaped from the system through the broken "T" fitting where the damaged sprinkler had been replaced three or four days earlier. The damage from that water is the subject of this litigation. Upon investigation Culligan's foreman, Bill Deakins, found the "drop" on the hall floor directly below the "T" fitting from which it had hung. The "T", broken into two halves, was found in the attic. The system had tripped, and water had escaped through the broken "T". Deakins opined to Ed Stoops that the fitting was defective, as evidenced by the way it broke.

The "T" was cast iron, and no definite reason for its breaking was ever found. Opinions and speculation abound. Ed Stoops stated that he had seen "T" § broken but it required a sledge hammer blow. Bill Deakins testified that he examined the whole system and could find no cause for the break, but guessed that the "T" was defective. He stated that in 21 years of experience he had never seen a "T" fail in that manner. He speculated that a freeze could do it, but, again, there was no water in the pipes. He further testified that the threads in a pipe are tapered, and a cast iron fitting such as a "T" can be broken by tightening it too tight. However, he described an experiment with an identical "T" in which he was unable to break the "T" with a 24" pipe wrench. Fuson testified that had the "T" broken during the installation of the drop, he could have heard it, but he did not hear it break. In any case if the pressure dropped for any reason, including the compressor being shut off or a leaking pipe, the system could be tripped, causing the release of the water.

An expert witness called by Culligan, Nick F. Bratkovich, an engineer, testified that after metallurgical analysis, no defects could be detected in the broken "T", and further, there was no evidence of abuse of the "T". He stated that a fracture such as this usually occurs at maximum stress. The kinds of forces which would cause the stress are high internal pressure, great impact, or shock. An example would be a hard blow with a hammer along the pipe assembly which could cause a heavy shock load to the casting. Freezing can be a cause. Strong pulsating forces, such as those that occur when water tries to stabilize in a system that has air in it, create impulses through the pipe which can cause a fracture. This latter phenomena is called "water knock" or "water hammer." An external blow, or a blow to the pipe (the "drop") hanging down through the ceiling could also cause a fracture.

ISSUES

Bituminous and Chance raise the following issues for review:

I. Did the trial court commit reversible error when it failed and refused to further instruct or reinstruct the jury, after the jury, during its deliberations made the following request for information: "If you find for the plaintiff on only one of the three counts, is the decision (or verdict) then for the plaintiff or against the plaintiff?

II. Was Bituminous entitled to submit this action to the jury under the doctrine of res ipsa loquitur, and if so did the trial court err in its removal of this issue from the jury's consideration and its refusal to instruct upon said doctrine?

III. Did the trial court err in determining as a matter of law that the contract between Culligan and Don Chance violated the provisions of IND.CODE 26-2-5-1 (1976) and in further instructing the jury that a portion of the contract was void?

IV. Was there sufficient evidence upon which to instruct the jury on the issue of contributory negligence?

V. Did the trial court err in instructing the jury concerning the nature and effect of expert testimony?

VI. Did the trial court err in dismissing this action as to Don Chance, or alternatively err in holding that Bituminous was not allowed to recover any damages in this action beyond the actual payment made by Bituminous for damages to the property in question?

DISCUSSION AND DECISION...