Gill v. Rollins Protective Services Co.

• Decision Date: 30 April 1986
• Docket Number: Nos. 84-1679,s. 84-1679
• Citation: 773 F.2d 592
• Parties: Edith GILL, Individually and as Committee of Joseph E. Gill and United Services Automobile Association, Appellants, v. ROLLINS PROTECTIVE SERVICES COMPANY, a Delaware Corporation, Appellee. Edith GILL, Individually and as Committee of Joseph E. Gill and United Services Automobile Association, Appellees, v. ROLLINS PROTECTIVE SERVICES COMPANY, a Delaware Corporation, Appellant. (L), 84-1680.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 592

773 F.2d 592 Edith GILL, Individually and as Committee of Joseph E. Gill
and United Services Automobile Association, Appellants,
v.
ROLLINS PROTECTIVE SERVICES COMPANY, a Delaware Corporation,
Appellee.
Edith GILL, Individually and as Committee of Joseph E. Gill
and United Services Automobile Association, Appellees,
v.
ROLLINS PROTECTIVE SERVICES COMPANY, a Delaware Corporation,
Appellant. Nos. 84-1679(L), 84-1680. United States Court of Appeals,
Fourth Circuit. Argued May 7, 1985.
Decided Sept. 26, 1985.
As Amended on Denial of Rehearing April 30, 1986. ^*

John G. Gill, Jr., Rockville, Md. (Chris Marder; Gill & Sippel, Rockville, Md., Susan Korfanty, Arlington, Va., on brief), for appellants/cross-appellees.

David P. Durbin, Washington, D.C. (Carol T. Stone, Jordan, Coyne, Savits & Lopata, Washington, D.C., on brief), for appellee/cross-appellant.

Before MURNAGHAN, ERVIN and SNEEDEN, Circuit Judges.

ERVIN, Circuit Judge.

Edith Gill brought this diversity action against Rollins Protective Services Company ("Rollins") on behalf of herself and her husband for damages resulting from the burning of their house in which Rollins had installed a fire alarm system. Upon Rollins' motion, United Services Automobile Association ("USAA"), the Gills' subrogated home insurer, was joined to the suit as a real party in interest. The case was submitted to a jury on theories of common-law negligence and violations of Virginia's Consumer

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Protection Act, Va.Code Ann. Sec. 59.1-196 et seq. (1977). The jury returned a general verdict in favor of the Gills for $238,032.78, and Rollins appealed. This court vacated the judgment and remanded the case for a new trial because the general verdict did not reveal upon which theory recovery was premised. Gill v. Rollins Protective Services, 722 F.2d 55 (4th Cir.1983). After remand, Gill and USAA withdrew their negligence claim and filed a motion for partial summary judgment to establish Rollins' liability for damages under the Virginia Consumer Protection Act. At the same time, Rollins sought partial summary judgment on USAA's claim under that Act. Both motions were denied by the district court, and the negligence claim was thereafter reinstated.

The case was again tried before a jury on the statutory and negligence claims. At the close of all the evidence, Gill and USAA once again withdrew their negligence claim. The jury then returned a verdict in favor of Rollins on the claims under the Virginia Consumer Protection Act.

After the district court denied Gill and USAA's motion for a new trial, they appealed, asserting that (1) the district court erred in improperly applying the legal standard for a directed verdict to the motion for a new trial, and (2) the district court erred in refusing to grant partial summary judgment on the Virginia Consumer Protection Act claims. Rollins has cross-appealed, contending that USAA, as an insurance company, lacks the capacity to seek a remedy under the Virginia Consumer Protection Act. Because we believe that the district court applied the wrong standard in ruling on the appellants' motion for a new trial, we remand this case for reconsideration of the new trial motion under the proper standard.

I.

The facts of this case are elaborately set forth in our prior opinion at 722 F.2d at 56-58. Suffice it to say that in late August, 1978, Rollins solicited the Gills by telephone to purchase its fire and burglary alarm service. Mrs. Gill was interested in the service because her husband, who was suffering from Alzheimer's disease at the time, was somewhat careless in his smoking habits. A Rollins salesman subsequently visited Mrs. Gill and presented her with "the absolute system for [her] that would work perfectly." He described the system as virtually foolproof and capable of automatically calling the fire department for help. The Rollins salesman also gave Mrs. Gill a brochure that stated that the "virtually foolproof" wireless system would continuously monitor the house and automatically notify the proper authorities over the existing telephone system in the event of fire.

Mrs. Gill decided to subscribe to the service and signed Rollins' "Installation-Service Agreement." The system was installed on September 9, 1978. Despite the fact that Mrs. Gill had told Rollins about her husband's careless smoking habits, no fire or smoke detectors were placed in his basement study, the place where Mr. Gill spent most of his time.

On April 11, 1979, Mrs. Gill smelled smoke while she was in the kitchen above her husband's basement study. Soon thereafter, she heard Rollins' outdoor alarm. However, the inside alarm did not sound nor did the inside lights turn on as advertised. Mrs. Gill found her husband and fled the burning house, but did not call the fire department because of Rollins' assurance that the system would automatically call the fire department. However, concerned neighbors called the police who later notified the fire department. Nevertheless, the house was totally destroyed by the fire. A later investigation revealed that the fire was probably started by careless smoking in the basement study. Neither Rollins nor the Emergency Communications Center had any record of an alarm sent from the Gill house on the night of the fire.

II.

After the jury returned its verdict in favor of Rollins on Gill's claim under the

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Virginia Consumer Protection Act, Gill filed a motion for a new trial. In denying this motion, the district court made the following remarks:

The plaintiffs' Rule 59 motion for a new trial is denied. The case was fairly submitted to the jury on the issues that were open in the case at the conclusion of the evidence. And their resolution of it is binding on me.

And indeed, one of the questions that the jury put to the...