Home Ins. Co. of Illinois v. National Tea Co.

• Decision Date: 18 December 1990
• Docket Number: Nos. 89,s. 89
• Parties: The HOME INSURANCE CO. OF ILLINOIS and Beall-Ladymon Corp. v. NATIONAL TEA CO., Bogue Falaya Investments, Ltd., and the Covington Volunteer Firemen's Association, Inc. VIGILANT INSURANCE COMPANY v. NATIONAL TEA COMPANY, National Supermarkets, Inc. and/or National Food Stores of Louisiana, Inc., W.H. Reynolds Distributors, Imperial Associated Contractors, Inc., Bolling Oven and Machine Company, John Mykolyk d/b/a J. Mykolyk & Associates, I. William Sizeler d/b/a I. William Sizeler & Associates, James Grogin, the Municipality and City of Covington, Louisiana, the Louisiana State Fire Marshall, and the Covington Volunteer Firemen's Association, Inc., and Nussetex Company and/or Nussex Company. CA 1453, 89 CA 1454. 577 So.2d 65
• Court: Court of Appeal of Louisiana — District of US

Page 65

577 So.2d 65

The HOME INSURANCE CO. OF ILLINOIS and Beall-Ladymon Corp. v. NATIONAL TEA CO., Bogue Falaya Investments, Ltd., and the

Covington Volunteer Firemen's Association, Inc.

VIGILANT INSURANCE COMPANY v. NATIONAL TEA COMPANY, National Supermarkets, Inc. and/or

National Food Stores of Louisiana, Inc., W.H. Reynolds

Distributors, Imperial Associated Contractors, Inc., Bolling

Oven and Machine Company, John Mykolyk d/b/a J. Mykolyk &

Associates, I. William Sizeler d/b/a I. William Sizeler &

Associates, James Grogin, the Municipality and City of

Covington, Louisiana, the Louisiana State Fire Marshall, and

the Covington Volunteer Firemen's Association, Inc., and

Nussetex Company and/or Nussex Company.

Nos. 89 CA 1453, 89 CA 1454.

577 So.2d 65

Court of Appeal of Louisiana First Circuit.

Dec. 18, 1990.

Rehearing Denied Feb. 20, 1991.

Writs Granted May 17, 1991.

Charles Guibault, Beverly Klundt & A. Mark Flake, New Orleans, for Great Southwest Fire Ins. Co.-defendants.

Steven Lozes, H. Alston Johnson, III, New Orleans, for Nat. Tea Co., Twin City Fire Ins. Co.-defendants.

Edward Rice, Jr. and Joseph Gordon, Jr., New Orleans, for Vigilant Ins. Co.-defendant.

Kevin Cole, Metairie, for Home Ins. Co. of Illinois & Beall-Ladymon-plaintiffs.

Michael Vondenstein, Metairie, for Eileen's Expression's Inc. & General Acc. Ins. Co. of America-defendants.

Thomas Mull, Covington, for Shirtz N' Things, Byron Tweedy d/b/a Red Carpets, Clyde Quave d/b/a Covington Sportsman, Inc., Gloria Rodick, wife of/and Elton Van Rodick, d/b/a Soundtrack, Sregit, Inc., d/b/a Video Showplace, Adrianne Achee d/b/a Eileen's Expressions, Inc., Cornelius M. Cousins, d/b/a Bogue Falaya Hairdressers, Alma Fern Willis, wife of/and John T. Willis d/b/a Willis Sales Agency, Inc., Edward Griffin d/b/a Antique, Reproductions, Maryland Cas. Co., First Nat. Bank, Aetna Cas. & Surety Co.-defendants.

Steven M. Lozes, New Orleans, for Nat. Food Stores of La., Inc., & Great Southwest Fire Ins. Co.-defendants.

David Walle, New Orleans, for The Toggery Shop of Covington, Inc. & St. Paul Fire and Marine Ins. Co.-defendants.

Ronald C. Hammock, E. Kelleher Simon, Covington, for Maryland Cas. Co. and Covington Sportsman, Inc.

Roger Broussard, Baton Rouge, for State of La. through the Dept. of Public Safety, Office of State Fire Marshall.

Dale W. Poindexter, New Orleans, for Highlines Const. Co., et al.

Frederick Bott, New Orleans, and Patrick Berrigan, Victor Stilwell, Jr. for August Perez, Jr.

Gary Bezet, Pamela C. Keller, Baton Rouge, for City of Covington, James Grogan, Chief of the Covington Volunteer Fire Dept.

Joseph Tosterud, Jr., Covington, for Shirtz N' Things Covington Inc. (also appellant).

Brad Theard, New Orleans, for Bolling Oven & Mach. Co., Great American Ins. Co. and B.K. Industries.

Arthur Leith & Henri Wolbrett, III, New Orleans, for I. William Sizeler d/b/a I. William Sizeler & Associates & Ins. Co. of North America.

Kristyne McCullough, New Orleans, for W.H. Reynolds Distributors, Inc., Bolling Oven Co. and B.K. Industries.

Steven Caire, Covington, for DOTD.

Timothy Waller, Sr., Metairie.

Marilyn Coehn, Metairie.

Christopher Moody, Hammond, for Covington Volunteer Fireman Ass'n.

Ronald Hand & Jack Blossman, Bogue Falaya Plaza, Covington, for Richard Blossman d/b/a Blossman Leasing, Commercial Plaza, Inc. & Commercial Leasing, Inc., Blossman Interests, St. Tammany Parish, La., F.W. Pierce Bogue Falaya Plaza, Inc. & Richard Blossman, Jr. Patrick J. Berrigan, Charles, Seemann, Jr., Joseph L. McReynolds, Brian W. Erikson, and Joseph Marcal, New Orleans, for John Mykolyk d/b/a John Mykolyk & Associates.

Joseph Gordon, Jr., Edward J. Rice, Jr., Philip O. Bergeron & Philip A. Becnel, III, New Orleans, for Bogue Falaya Investments, Ltd., Berger & Burrus Investments & Darryl Berger & David Burrus.

J. Paul Demarest & Andrew Davis, New Orleans, for Sregit, Inc. d/b/a Video Showplace, Inc.

Dean Sutherland, New Orleans, for B.K. Industries, Inc., and/or Barbara King, Inc. and Standex Co.

Gordon F. Wilson, Jr., New Orleans.

Rykert Toledano, Jr., Covington.

Before LOTTINGER, SHORTESS and CARTER, JJ.

CARTER, Judge.

These consolidated appeals arise out of several suits for damages resulting from a fire in a shopping mall.

FACTS

In his written reasons for judgment, the trial judge succinctly set forth the facts in the instant case, which are not in serious dispute, as follows:

On the morning of March 11, 1984, a fire destroyed the National Food Store located in one corner of the Bogue Falaya Shopping Center in Covington, Louisiana. Smoke from the fire and the water resulting from the fire-fighting efforts caused damage to a substantial portion of the other stores in the center.

The day began in a normal way. Employees of National arrived to open the store about 7:00 am. Located in the rear of the store was a delicatessen and within the deli was an oven that was used to bake bread and cookies. The oven was turned on that morning by an employee shortly after her arrival and was used to bake some bread.

The initial indication of a problem came at about 9:00 am, when several of the store employees heard a noise that they described as that of glass breaking. They proceeded toward the source of the noise, in the rear area of the store, and noticed a red glow coming from the area immediately above the deli.

In the next few minutes, a number of things occurred. An employee of the store went into the deli area and instantly noticed that pieces of the deli's drop ceiling had fallen to the floor and were burning. These fallen pieces had created a hole in the ceiling directly above the bread proofer that was located next to the oven. The employee attempted to fight the fire by the use of several fire extinguishers in the area but this effort quickly proved to be futile. The fire department was called. The lights in the store went out and the store was evacuated.

The Covington Volunteer Fire Department responded to the fire, as did elements of other area fire departments. The fire was brought under control relatively quickly, with serious damage limited to the deli portion and storage area of the store. By sometime shortly after noon, all or almost all of the fire-fighting units had left the scene and several individuals, including an inspector from the state fire marshall's office, were permitted to enter the store. Within minutes, it became evident that the fire had either rekindled or that a second fire had begun. Burning tar and ceiling tiles began falling onto the shelves near the center of the store.

The store was quickly evacuated again and the fire departments were recalled. This second fire was much more widespread and serious. By the time it was brought under control, the fire had virtually destroyed the National store. Smoke and water damage had affected the majority of the other stores in the center.

PROCEDURAL BACKGROUND

In his written reasons for judgment, the trial judge also set forth the procedural posture of the instant case, as follows:

Numerous law suits were filed by the various tenants of the center whose stores experienced damage and/or their subrogated insurers against the following defendants: (1) National Tea Company, the lessee of the area where the fire started, its primary insurer, Great Southwest Insurance Company, and its excess insurer, Twin City Insurance Company; (2) Bogue Falaya Investments, Ltd., Bogue Falaya Investments, Inc., and Berger and Burrus Investments, the owner of the shopping center, and their insurer, Vigilant Insurance Company (hereinafter referred to as "the center owners"); (3) the Blossman family interests, the previous owners of the center; (4) the City of Covington and Fire Chief James Grogan; (5) the Covington Volunteer Firemen's Association, Inc.; (6) the State of Louisiana, through the Department of Public Safety and Corrections, Office of State Fire Marshall (sic); (7) CLECO, Inc. and its insurer, Highlands Underwriters Insurance Company; (8) Highlines Construction Company and its insurer, National Union Fire Insurance Company; (9) John Mykolyk, Architect; (10) I. William Sizeler, Architect; (11) August Perez, Jr., Architect; (12) Bolling Oven and Machine Company, the manufacturer of the deli oven, and its insurer, Great American Insurance Company; (13) Bar-B-Que King, Inc. and/or BK Industries, Inc. and its insurer, Hartford Insurance Company; (14) W.H. Reynolds Distributors, Inc., B & L Distributors, and Northbrook Property and Casualty Insurance Company; (15) Imperial Associated Contractors, Inc.; (16) Nussetex Company and/or Nussex Company, Inc.; and (17) Lester Boudreaux, d/b/a Boudreaux Electric.

Most of the defendants subsequently filed cross-claims against most or all of the other defendants. A few of the named defendants were never properly joined or were found to be bankrupt and/or out of business. The various law suits were consolidated by the Court, and the trial of the matter was bifurcated into a liability phase and a damage phase.

The matter was tried for seven days commencing on December 1, 1987. During the course of the trial, the judge heard the testimony of twenty-two (22) witnesses and permitted the introduction of dozens of exhibits. At the conclusion of the trial, the judge took the matter under advisement and subsequently determined that the fire began in the National store in the area between the drop ceiling of the deli area and the floor of the storage room located directly above the deli. The judge also determined that a preponderance of the evidence supported the conclusion that the fire was the result of an electrical arc caused by a short in the control wiring in the deli oven. The trial judge concluded that National was solely liable for such damage resulting from the fire. ¹

Thereafter, the trial judge rendered judgment in favor of plaintiffs and against National Tea Company, Great Southwest Fire Insurance Company, and Twin...