Res–care Inc. v. Roto–rooter Serv. Co.

• Decision Date: 28 October 2010
• Docket Number: No. C–09–03856 EDL.,C–09–03856 EDL.
• Citation: 753 F.Supp.2d 970
• Parties: RES–CARE INC., Plaintiff,v.ROTO–ROOTER SERVICES COMPANY, Defendant.
• Court: U.S. District Court — Northern District of California

753 F.Supp.2d 970

RES–CARE INC., Plaintiff,

v.ROTO–ROOTER SERVICES COMPANY, Defendant.

No. C–09–03856 EDL.

United States District Court, N.D. California.

Oct. 28, 2010.

James Anthony Napoli, Amelia Miazad, Jill N. Cartwright, Lori Campione Ferguson, Warren Richmond Webster, Hanson Bridgett LLP, San Francisco, CA, for Plaintiff.Kenneth Dominic Simoncini, Angela Ompoc, Simoncini & Associates, Kerri A. Johnson, Attorneys at Law, San Jose, CA, Therese Yvonne Cannata, Cannata Ching & O'Toole LLP, Alison M. Crane, Richard S. Diestel, Bledsoe Cathcart Diestel & Pedersen, San Francisco, CA, Thomas R. Pender, William J. Cremer, Cremer Spina Shaughnessy Jansen & Siegert, LLC, Chicago, IL, for Defendant.

OPINION AND ORDER DENYING DEFENDANT ROTO–ROOTER'S MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART AND DENYING IN PART DEFENDANT LEONARD VALVE'S MOTION FOR SUMMARY JUDGMENT

ELIZABETH D. LAPORTE, United States Magistrate Judge.

Plaintiff Res–Care, Inc. brought this action for indemnity against Defendants Roto–Rooter, Leonard Valve and Bradford White arising from Plaintiff's $8.5 million settlement of a lawsuit brought by the Conservator of a severely developmentally disabled adult, Theresa Rodriguez, who was badly scalded by hot water during a shower at her residential care facility. Defendants Roto–Rooter and Leonard Valve have moved for summary judgment.

The Court held a hearing on Defendants' Motions on September 16, 2010. The Court issued a brief order on October 1, 2010 denying both motions. This opinion sets forth the Court's reasoning in detail.

Legal Standard

Summary judgment shall be granted if “the pleadings, discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Pro. 56(c). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. The court must view the facts in the light most favorable to the non-moving party and give it the benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court must not weigh the evidence or determine the truth of the matter, but only determine whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir.1999). The evidence presented by the parties must be admissible. Fed. R. Civ. Proc. 56(e).

A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the nonmoving party's case. Id.

If the moving party meets its initial burden, the opposing party “may not rely merely on allegations or denials in its own pleading;” rather, it must set forth “specific facts showing a genuine issue for trial.” See Fed.R.Civ.P. 56(e)(2); Anderson, 477 U.S. at 250, 106 S.Ct. 2505. “Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment.” Soremekun v. Thrifty Payless, Inc. 509 F.3d 978, 984 (9th Cir.2007); see also Nelson v. Pima Community College, 83 F.3d 1075, 1081–82 (9th Cir.1996) (“[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment”). If the nonmoving party fails to show that there is a genuine issue for trial, “the moving party is entitled to judgment as a matter of law.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

Roto–Rooter's Motion for Summary Judgment

Roto–Rooter moves for summary judgment on the grounds that: (1) Plaintiff cannot provide evidence that Roto–Rooter's conduct was intentional so as to indemnify Plaintiff or its employee for their relative intentional conduct; (2) Plaintiff will be unable to demonstrate that any portion of the settlement of the underlying action represents comparative negligence of Roto–Rooter because Plaintiff failed to allocate the settlement according to the claims in the underlying case; and (3) the intentional misconduct of Plaintiff and the criminal misconduct of its employee constitute superceding causes that cut off any potential liability on the part of Roto–Rooter.

A. Facts

Theresa Rodriguez is a severely developmentally disabled woman who resided at McGarvey House, a residential care facility for severely developmentally disabled individuals located in San Mateo County owned by Plaintiff, from 2002 until the scalding incident on May 5, 2004. Declaration of Angela Ompoc (Ompoc Decl.) Ex. A. She was dependent on staff for activities of daily living, including showering. Ompoc Decl. Ex. B.¹

Plaintiff has a commercial account with Roto–Rooter. Ferguson Decl. Ex. K at 77–78. On April 28, 2004, Roto–Rooter was called to the McGarvey House to replace a leaking water heater. Ompoc Decl. Ex. C at 78–79; Declaration of Lori Ferguson (Ferguson Decl.) Ex. E. Keith Campbell was the plumbing service technician sent to McGarvey House that day. Ompoc Decl. Ex. D; Ferguson Decl. Ex. E. He had been an employee of Roto–Rooter for nine and one half years. Id.

Roto–Rooter states on its website that it has factory trained and expert plumbers, with specific expertise in serving the plumbing needs of hospitals and nursing homes. Ferguson Decl. Ex. C. Roto–Rooter exercises control over its company-owned locations, including the Burlingame location at issue in this case. Ferguson Decl. Ex. D at 13.

Campbell removed a 50–gallon water heater and replaced it with a 50–gallon Bradford White water heater. Ompoc Decl. Ex. D. He was not advised on that date that there were any problems with temperature fluctuation. Ompoc Decl. Ex. E. He did not speak with anyone at the McGarvey House to ascertain any information about the particular needs of the McGarvey House residents with respect to hot water. Ferguson Decl. Ex. G at 69. He did not know when he went to the McGarvey House that it was a residential care facility. Ferguson Decl. Ex. G at 105.

After installing the water heater, Campbell set the temperature to between “high” and “warm” where he usually sets it, but which is higher than the manufacturer's recommended setting. Ompoc Decl. Ex. F; Ferguson Decl. Ex. H at RR000033. He estimated that the temperature at that setting would probably be 118 or 120 degrees. Ferguson Decl. Ex. G at 135. He testified that in general, his determination of where to set the temperature of the water heater is not influenced by who would be using the hot water. Ferguson Decl. Ex. G at 77. Campbell did not test the water temperature before leaving the McGarvey House; it is not his practice to do so because it takes about forty-five minutes for the water to heat up and because there is no training to test the temperature before leaving. Ferguson Decl. Ex. G at 73–74. According to Plaintiff's expert, the failure to test the water temperature was contradicted the manufacturer's instructions and was a breach of his duty as a plumber. Declaration of Ronald George (George Decl.) Ex. B at 12–13. Further, according to the expert, Campbell's reliance on the water heater's thermostat to control the outlet temperature was a violation of the Uniform Plumbing Code because the thermostat cannot accurately control the hot water in the water heater. Id. at 14. The Bradford White manual states that water above 125 degrees can cause severe burns instantly. Ferguson Decl. Ex. H at RR000029.

Campbell did not make any adjustments to the mixing valve manufactured by Leonard Valve that had been attached to the water heater at the McGarvey House, nor did he know what it was when he saw it attached to the water heater. Ompoc Decl. Ex. H; Ferguson Decl. Ex. I; Ex. G at 74–75, 113. Plaintiff's expert testified that an adequately trained plumber would have known what a mixing valve was and would have checked it when changing the water heater. Ferguson Decl. Ex. K at 70; George Decl. Ex. B. The mixing valve was connected to the water heater by a short branch pipe and was visible. Ferguson Decl. Ex. G, I, K. The purpose of a mixing valve is to reduce the temperature from a boiler or heater down to a lower level. Ompoc Decl. Ex. J; Ferguson Decl. Ex. K. The valve operates as a safety device, so that if the water comes out of the water heater at an unsafe temperature, the mixing valve will bring the temperature down to a safe level before delivering the water to the household fixtures. Ferguson Decl. Ex. K. The mixing valve label stated that it was not to be used for “direct showering or bathing applications.” Ompoc Decl. Ex. I.

Campbell did not have any factory training with respect to the Bradford White water heater or anything else. Ferguson Decl. Ex. G at 93. Roto–Rooter has no factory training program. Ferguson Decl. Ex. D at 37–38. Roto–Rooter also has no specific training for the hospital and nursing home industries. Id. at 103–06. Campbell did not receive any training from Roto–Rooter about mixing valves. Ferguson Decl. Ex. G at 74–75, 113. Campbell did not read the Bradford White instruction manual that came with the water heater that he installed at the McGarvey House. Ferguson Decl. Ex. G at...