Great Northern Ins. Co. v. Ruiz

• Decision Date: 05 February 2010
• Docket Number: No. CV 408-194.,CV 408-194.
• Citation: 688 F. Supp.2d 1362
• Parties: GREAT NORTHERN INSURANCE COMPANY, as subrogee of John and Nancy Gordon, and Assurance Company of America, as subrogee of G. Brazer & Associates, LLC, Plaintiffs, v. Martin RUIZ d/b/a Hilton Head Painting and the Ford Plantation, LLC, Defendants.
• Court: U.S. District Court — Southern District of Georgia

688 F.Supp.2d 1362

GREAT NORTHERN INSURANCE COMPANY, as subrogee of John and Nancy Gordon, and Assurance Company of America, as subrogee of G. Brazer & Associates, LLC, Plaintiffs, v. Martin RUIZ d/b/a Hilton Head Painting and the Ford Plantation, LLC, Defendants.

No. CV 408-194.

United States District Court, S.D. Georgia, Savannah Division.

February 5, 2010.

Karen D. Fultz, Cozen & O'Connor, Atlanta, GA, for Plaintiffs.

Catherine M. Palumbo, McCorkle & Johnson, LLP, A. Martin Kent, Martin

Kent, PC, Robert Clayton Hughes, III, Brannen, Searcy & Smith, LLP, Savannah, GA, for Defendants.

ORDER

J. RANDAL HALL, District Judge.

Before the Court are several motions filed by Plaintiffs and Defendants. On March 27, 2009, Plaintiffs filed a "Stipulation for Substitution of Party," consented to by all parties in this case, requesting that the Court "allow the substitution of the Ford Plantation Association in place of the Ford Plantation, LLC." (Doc. no. 33.) A little over a month later, on May 13, 2009, Defendant Martin Ruiz filed a Motion to Strike Plaintiffs' Expert Witness and a related motion for summary judgment. (Doc. nos. 38 & 39.) That same day, Defendant, the Ford Plantation, LLC ("Ford LLC"), filed a separate motion for summary judgment. (Doc. no. 42.) Upon consideration of the record evidence, the briefs submitted by counsel, and the relevant law, Plaintiffs' Motion for Substitution of Party is GRANTED, Defendant Martin Ruiz's Motion to Strike Plaintiffs' Expert Witness and his related motion for summary judgment are DENIED, and the Ford Plantation Association's Motion for Summary Judgment¹ is GRANTED.

I. BACKGROUND

A. March 29, 2007-The Day of the Fire

This subrogation action arises out of a March 29, 2007 residential fire that occurred at the Ford Plantation-an upscale, gated community located in Richmond Hill, Georgia. (Compl.¶¶ 9, 16.) Sometime on or around January of 2006, George Brazer & Associates ("Brazer") began construction on a home for John and Nancy Gordon, which was to be located within the Ford Plantation. (Brazer Dep. at 9.) Brazer hired Martin Ruiz d/b/a Hilton Head Painting to serve as the painting subcontractor at the Gordons' residence. (Ruiz Dep. at 18-19.)

On March 29, 2007, prior to the fire, Martin Ruiz and four other workers stained wood within the Gordons' home. (Id. at 20.) On that particular day, they stained wood located in the study, which was located at the west end of the house. (Id.) They also performed work in the study's attached bathroom, a hall leading to the living room, and in the living room. (Brazer Dep. at 12.) Throughout the staining process, the stain was applied with rags, which, at the end of the day, were usually placed in five gallon buckets that were then filled with water and placed in an exterior dumpster. (Ruiz Dep. at 34-35.)

Martin Ruiz left the Gordons' home sometime between noon and two o'clock in the afternoon on the day of the fire. (Id. at 20.) At that time, four painters were still working in the house. (Id. at 27.) Between 3:30 p.m. and 4:00 p.m., when contractor Scott Brazer left the worksite, the painters were the only subcontractors left at the house (Brazer Dep. at 11); the painters did not leave until 4:30 p.m. (Ruiz Dep. at 27).

The night of the fire, a surveillance camera positioned at a marina located directly behind the Gordons' home recorded a significant portion of the fire. (Vasher Dep. at 33; Tijerina Dep. at 29.) The camera's range of view consisted of the marina and a limited portion of the Gordons' home. (Vasher Dep. at 33.) According to Plaintiffs' cause and origin expert, visible flames first appear on the video at approximately 8:11 p.m.,² in between the living room and the gallery area, on the west side of the house. (Tijerina Dep. at 32-33.)

Jacob Grant, a security guard at the Ford Plantation, was the first to encounter the fire, which he came upon at approximately 8:50 p.m. during a routine patrol of the neighborhood. (Grant Dep. at 32; Mealor Dep. at 22.) When Mr. Grant arrived, he saw a fire burning within the interior of the house; the house's frame was still intact. (Grant Dep. at 34-35.) Mr. Grant subsequently requested by radio that the fire department be contacted. (Id.) Despite Mr. Grant's and the firefighters' efforts, the house was burned nearly completely to the ground. (Mealor Dep. at 9-10.)

B. Plaintiffs' Post-Fire Investigation

Plaintiffs retained electrical engineer, John Nemeth, and investigator Antony Tijerina to determine the cause and origin of the fire. (Tijerina Dep. at 25; Nemeth Dep. at 13.) Mr. Tijerina visited the site of the fire three or four times. (Tijerina Dep. at 64.) Among other things, Mr. Tijerina conducted a number of interviews (Tijerina Dep. at 27-28, 34, 36), sifted through debris (id. at 38), analyzed burn patterns, identified charring and other evidence of severe burning (id. at 51), and reviewed the video evidence of the fire (id. at 31). Based upon Mr. Tijerina's investigation, combined with his personal experience in the field, he determined that, in his opinion, the fire originated on the main floor in the center of the home. (Id. at 30.)

Mr. Nemeth's investigation focused on determining the role, if any, the electrical system played in the fire. (Nemeth Dep. at 14.) Mr. Nemeth's investigation proceeded from the outside in; he looked at the electrical system, starting at the transformers that fed into the structure, surveyed the structure and electrical system to determine if anything was out of the ordinary, and then, finally, concentrated on the area of origin identified by Mr. Tijerina. (Id. at 27-29.) At the conclusion of his investigation, Mr. Nemeth found that, to a reasonable degree of scientific certainty, no electrical component within the area of origin could have started the fire. (Id. at 34.)

Based upon Mr. Nemeth's conclusions, Mr. Tijerina's own investigation, and process of elimination,³ Mr. Tijerina determined that the fire was caused by the spontaneous combustion of Zar-stained rags left behind by the painters. (Tijerina Dep. at 59-60.) Zar is an oil-based wood stain that was used by the painters while staining the Gordons' floors. (Ruiz Dep. at 30.) Zar-stained rags are prone to spontaneous combustion if not disposed of properly, according to the product's material safety data sheet. (Doc. no. 46, Ex. 5 at 2.) Mr. Tijerina's opinion was based upon evidence gathered during the course of his investigation, his experience, and the fact that he was able to eliminate all other possible causes of the fire. (Tijerina Dep. at 59-60.)

C. Security at the Ford Plantation

In addition to bringing a claim against Defendant Martin Ruiz, Plaintiffs have also asserted negligence and gross negligence claims against Ford LLC, which they now wish to assert against the Ford Plantation Association ("Association"). (Compl. ¶ 42; Doc. no. 33.) Plaintiffs claim that the Association failed to "properly secure the premises, monitor the video surveillance and notify the emergency personnel in a timely manner." (Compl. ¶¶ 27-34, 40-45.) Plaintiffs have since admitted that Ford LLC and, indirectly, the Association are absolved of simple negligence, in light of the Ford Plantation's binding Declaration of Covenants, Conditions, and Restrictions. (See Doc. no. 57 at 9.) Plaintiffs still contend, however, that the Association should be liable for its gross negligence. (Id.)

The Ford Plantation's Declaration of Covenants, Conditions, and Restrictions states the following regarding security at the Ford Plantation:

The Association may, but shall not be obligated to, maintain or support certain activities within the Properties designed to make the Properties safer than they otherwise might be. Neither the Association, the original Declarant, nor any successor Declarant shall in any way be considered insurers or guarantors of security within the Properties, nor shall any of them be held liable for any loss or damage by reason of failure to provide adequate security or ineffectiveness of security measures undertaken. No representation or warranty is made that any measures taken, including any mechanism or system for limiting access to the Properties, cannot be compromised or circumvented, nor that any such security measures undertaken will in all cases prevent loss or provide the protection for which the system is designed or intended. Each Owner acknowledges, understands and covenants to inform its tenants and all occupants of its Unit that the Association, its Board of Directors and committees, Declarant, and any successor Declarant are not insurers and that each Person using the Properties assumes all risk of personal injury and loss or damage to property, including Units and the contents of Units, resulting from acts of third parties.

(Doc. no. 42, Ex. 1 at 11.)

The Association provides limited security for the residents of the Ford Plantation. (Vasher Dep. at 13.) The security consists of a gate officer, vehicle patrol officers, and surveillance cameras. (Id. at 17-18.) The security officers serve several functions: they provide access control for the Ford Plantation and escorts upon request, they respond to burglar and fire alarms, and they report fires when they are detected. (Id. at 13-14.)

The gate officer, specifically, focuses on access control, which largely consists of monitoring the main gate, greeting residents, fielding phone calls, and regulating the inflow of visitors. (Id. at 17-18.) The gate officer is also responsible, however, for watching the three monitors which display images transmitted by ten cameras situated throughout the Ford Plantation; these cameras are largely focused on entry points located throughout the property. (Id. at 19-23.) On the day of the fire, one of the surveillance cameras located at the marina was positioned in such a way that it transmitted a view of the water, dock, seawall, and a portion of the Gordons' house. (Id. at 33.)...