Peoples Gas System, Inc. v. Acme Gas Corp.

• Citation: 689 So.2d 292
• Decision Date: 15 January 1997
• Docket Number: 95-1942,Nos. 95-1282,s. 95-1282
• Parties: 22 Fla. L. Weekly D205 PEOPLES GAS SYSTEM, INC. and People Gas Co. f/u/b/o American Home Assurance Co., Appellants, v. ACME GAS CORPORATION; Atlantic Gas Corporation; Boye's Gas, Inc.; City Gas Company of Florida; Delta Gas Company d/b/a Universal Gas Corporation; Dolphin Gas System; Home Gas Corporation; Metrogas Inc.; Miller Gas Company; Petrolane Gas Service; Public Gas Company; Siegal Gas Corporation; BJD Energy Development Company d/b/a Sun Gas Corporation of Florida; Weeks Bottle Gas and Appliance Company; Miramar Gas Company; Liberty Gas Company; Palm Gas Service Company; and Blau Gas of Florida, Inc., Appellees.
• Court: Court of Appeal of Florida (US)

Page 292

689 So.2d 292

22 Fla. L. Weekly D205

PEOPLES GAS SYSTEM, INC. and People Gas Co. f/u/b/o American Home Assurance Co., Appellants, v. ACME GAS CORPORATION; Atlantic Gas Corporation; Boye's Gas, Inc.; City Gas Company of Florida; Delta Gas Company d/b/a Universal Gas Corporation; Dolphin Gas System; Home Gas Corporation; Metrogas Inc.; Miller Gas Company; Petrolane Gas Service; Public Gas Company; Siegal Gas Corporation; BJD Energy Development Company d/b/a Sun Gas Corporation of Florida; Weeks Bottle Gas and Appliance Company; Miramar Gas Company; Liberty Gas Company; Palm Gas Service Company; and Blau Gas of Florida, Inc., Appellees.

Nos. 95-1282, 95-1942.

District Court of Appeal of Florida Third District.

Jan. 15, 1997.

Rehearing Denied March 19, 1997.

Nicklaus & Wicks, P.A. and William R. Wicks, Coral Gables, for appellants.

Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. and Gerard E. Pyszka, Miami, and Cindy J. Mishcon, North Miami Beach, for appellee Public Gas Company.

Kubicki Draper and Elizabeth M. Rodriguez, Miami, for appellees Acme Gas Corporation, Atlantic Gas Corporation, City Gas Company of Florida, Delta Gas Company d/b/a Universal Gas Corporation, Dolphin Gas System, Home Gas Corporation, Miller Gas Company, BJD Energy Development Company d/b/a Sun Gas Corporation of Florida, Weeks Bottle Gas and Appliance Company and Palm Gas Service Company.

Knecht & Knecht and Michael R. Kirby, Miami, for appellees Metrogas, Inc. and Siegal Gas Corporation.

Ponzoli, Wassenberg & Sperkacz, P.A. and Richard L. Wassenberg, Miami, for appellee Blau Gas of Florida, Inc.

Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A. and Steven E. Stark, Miami, for appellee Petrolane Gas Service.

Before NESBITT, JORGENSON and GREEN, JJ.

GREEN, Judge.

I

Peoples Gas System, Inc. and People Gas Co. f/u/b/o American Home Assurance Co. (collectively "Peoples Gas") appeal an adverse final summary judgment entered in

                their third-party action for contribution and indemnity against appellees, all of whom were fellow members of a former emergency response system known as "Gas Central."   Peoples Gas also appeals an award of attorney's fees and costs to two of the appellees, Metrogas, Inc. and Siegal Gas Corp., based upon Peoples Gas' rejection of their respective offers of judgment.  We affirm the summary judgment as a matter of law based upon the undisputed facts set out below as well as the award of attorney's fees and costs to Metrogas, Inc. and Siegal Gas Corp
                

GAS CENTRAL

Gas Central was a non-profit organization formed in the late 1960s by various independent gas companies throughout Dade and Broward counties. Its sole purpose was to provide qualified gas personnel after normal business hours to assist fire and police departments in emergency situations involving gas leaks. Essentially, Gas Central's members agreed to designate one member to field and respond to all incoming emergency calls from the fire and/or police departments in Dade and Broward counties. The responding gas company would then go to the scene and report to the police or fire officer in charge. The company would also secure the immediate vicinity from danger by turning off or disconnecting the gas supply. It was agreed, however, that the responding company would make no repairs unless its own gas line was involved. Rather, the responding company was specifically charged with the task of identifying the Gas Central member which owned the leaking gas line and immediately calling that company to the scene to make the necessary repairs.

The prerequisites for membership in Gas Central were that each member: 1) maintain its own liability insurance policy in an agreed amount; 2) execute a hold harmless agreement absolving the responding gas company from any liability incurred at the scene on behalf of the particular Gas Central member; ¹ and 3) regularly provide the responding gas company with the names and phone numbers of its personnel members who were available to handle after-hours emergency matters. Whenever the designated company responded to an emergency scene with its personnel and equipment, it was entitled to bill the particular gas company whose line caused the leak for services rendered. The Gas Central was an informal organization which had no officers and/or directors. Other than its agreed-upon procedures for handling emergency calls, it operated without bylaws, articles of incorporation, or a charter. Gas Central further had no budget, bank account, insurance policy, office space or letterhead of its own. Nor did the participating members fund the organization with the payment of any dues. In fact, the only things that Gas Central had were two hotline telephones with unlisted numbers for Dade and Broward counties. These unlisted numbers were made available only to the fire and police departments in Dade and Broward counties.

amount paid to the responding company was not shared with the remaining Gas Central members.

From 1973 until the date of the incident in question, Peoples Gas was the gas company designated to receive and field emergency Gas Central calls in its office from the fire and police departments. In addition to the unlisted Dade and Broward hotline telephones for Gas Central emergencies in its offices, Peoples Gas also had a telephone with a published number in the directory for the public to report gas leaks. Pursuant to Gas Central's established procedures, ² Peoples Gas generally fielded approximately 15 to 18 Gas Central emergency calls per month. For its services, Peoples Gas routinely billed the individual Gas Central member involved when Peoples Gas dispatched its employees and/or equipment to the scene.

THE EXPLOSION

Peoples Gas' third-party action against appellees arose from a complaint filed by Thomas Googe against Peoples Gas and All State Gas Co. of Fla., Inc. d/b/a "All-Pro Gas" ("All-Pro") for injuries sustained by Googe on July 1, 1989 in a gas explosion at his home. The genesis of this incident actually began the day before, on June 30, 1989 when Googe's back yard neighbors, Diane and Daniel Riefler, detected a gas-like odor in their backyard. Although the Rieflers did not utilize gas or have gas lines on their property, they decided to call a local gas company to alert them of the odor.

Mr. Riefler then combed the yellow pages of the local telephone directory to find a gas company. He ultimately selected Peoples Gas because it "was in a bigger box than the rest." He telephoned the company to alert it of the gas odor. In response, Peoples Gas dispatched several of its employees to the Riefler residence. Upon their arrival, Peoples Gas' employees took readings from a combustible gas indicator ("C.G.I."), a device used to detect gas leaks. Peoples Gas' employees received what they perceived to be a dangerously high positive reading from the C.G.I. In fact, they classified the leak as "Grade 1" which they defined as "a leak that represents an existing or probable hazard to persons or property and that taking into account the location of the leak, requires prompt action until conditions are no longer hazardous." These employees also got even higher positive gas readings as they walked away from the back of the Rieflers' home toward the property line fence which separated the Rieflers' home and Googe's residence. Despite this fact, however, Peoples Gas' employees never extended their investigation into Googe's backyard.

Rather, Peoples Gas employees dug a small ventilation ditch at the corner of the Rieflers' house where the high gas reading was obtained. Despite their classification of the leak as "Grade 1," Peoples Gas' employees did not evacuate the neighborhood or warn its residents of the dangerous reading. Nor did they notify the fire and/or police departments of their findings.

At some point, someone in the area informed Peoples Gas that All-Pro, another Gas Central member, had gas lines in the area. Peoples Gas notified All-Pro to come to the scene. Upon All-Pro's arrival to the scene, Peoples Gas' employees departed with no further involvement. All-Pro's employees did a cursory inspection of the Rieflers' property and attempted to detect the presence of gas by merely sniffing the area with their noses. ³ When All-Pro's employees did not smell the gas, they apparently concluded that the area was safe and left the scene approximately two and a half hours after their arrival. Because the Rieflers still insisted that they smelled gas, one of All-Pro's employees later returned to the scene and again attempted to detect for the presence of gas with his nose. When he again could not smell the gas, he departed the scene without further investigation. None of the other Gas Central members had any involvement with or knowledge of this incident at the time.

Later on July 1, 1989, Googe was severely burned over 90% of his body in a gas explosion that occurred in his bathroom. The explosion occurred when Googe lit a match to smoke a cigarette. The match ignited gas fumes which had apparently permeated into Googe's residence. Although Googe survived the incident, he endured extensive personal injuries.

UNDERLYING MAIN LITIGATION

On September 12, 1989, Googe filed the main personal injury action below solely against All-Pro and Peoples Gas. Googe thereafter entered into a $2 million settlement with All-Pro's insurance carrier. This settlement, however, released only All-Pro's individual qualifiers and its employees who were dispatched to the scene. The settlement did not, however, release All-Pro itself. ⁴ Thus, at this point, All-Pro remained a defendant in the main action.

Early on in the litigation, Googe successfully moved for partial summary judgment against Peoples Gas on the issue of whether Peoples Gas had vicarious liability for All-Pro's negligence in failing to make the area of the gas leak safe. Peoples Gas' carrier thereafter settled this case with Googe...