Royal Indemnity Company v. City of Erie

• Decision Date: 23 April 1971
• Docket Number: Civ. A. No. 18-71 Erie.
• Citation: 326 F. Supp. 571
• Parties: ROYAL INDEMNITY COMPANY v. CITY OF ERIE.
• Court: U.S. District Court — Eastern District of Pennsylvania

326 F. Supp. 571

ROYAL INDEMNITY COMPANY v. CITY OF ERIE.

Civ. A. No. 18-71 Erie.

United States District Court, W. D. Pennsylvania.

April 23, 1971.

Andrew J. Conner, Erie, Pa., for plaintiff.

Edward A. Pastewka, Erie, Pa., for defendant.

KNOX, District Judge.

This complaint was brought by Royal Indemnity Company, a foreign fire insurance company, as the subrogee of Arthur F. Schultz Company following a fire in the City of Erie, Pennsylvania on July 26, 1970, in which a large building and its contents were destroyed. Plaintiff alleges that it has paid Schultz $488,994.05 pursuant to its contract of insurance as a result of which it is subrogated to Schultz's rights against the City of Erie, a Pennsylvania municipal corporation. It is alleged that the City was negligent in supplying water for the control of the fire and that the City operated its water bureau in a commercial or proprietary fashion and charged the users for supply of water.

Defendant has filed a Motion to Dismiss claiming the complaint fails to state a cause of action upon which relief can be granted and that the City in the operation of its fire bureau is acting in a governmental capacity and is, therefore, immune from suit. At the argument, the City withdrew the latter objection and admitted that it could not raise the defense of governmental immunity in connection with the operation of its water bureau even though it is alleged that it supplied insufficient water for fire fighting purposes. The defendant conceded that it supplied water even for fire fighting purposes in its proprietary or commercial capacity, and hence could be sued for negligence. The City contends, however, that it, or a private water company, cannot be held for supplying insufficient water for fire fighting purposes.

The law of Pennsylvania with respect to the liability of a city or private water company for supplying insufficient water for fire fighting purposes has recently been considered by the Supreme Court of Pennsylvania in Doyle v. South Pgh. Water Co., 414 Pa. 199, 199 A.2d 875 (1964) and Malter v. South Pgh. Water Co. and Whitehall Borough, 414 Pa. 231, 198 A.2d 850 (1964).

Malter is particularly important in connection with our present problem. It was there held that the Borough was responsible for "failure to discharge its proprietary duty in maintaining and operating the Borough's water system". While much of the language is limited to repair and maintenance of the lines, much of it would be equally applicable to design and installation. In the course of the decision, the court cites City of Chicago v. Selz Schwab & Co., 202 Ill. 545, 67 N.E. 386, where the city was held liable for damage caused by its negligence in failing to repair a leaking water pipe. It would seem that there is no logical difference between failure to repair a leak in a pipe as a result of which there is insufficient water pressure as in the Chicago case and failing to supply a pipe of sufficient size as a result of which there is insufficient water or water pressure to fight a fire.

In the instant case, the negligence of the City is charged in general language and further it is specifically charged to have failed to have "sufficient water, water supply, water pressure, water carrying pipes and water carrying equipment in the vicinity" so as to control the fire "all of which needs the defendant knew or should have known from past experience". It is further alleged that the City failed to have an adequately designed water system to provide the necessary water services to the building in question.

Particularly apropos in the present situation is the case of Renrag Corp. v. Dauphin Consolidated Water Supply Co. (Dauphin Co. 1969) 46 Pa.Disc. & Co.R. 2d 664). In that case, the defendant was charged with negligently having failed to maintain a water system adequate to provide water for fire fighting services and preliminary objections to the complaint in the nature of a demurrer were dismissed.

Under these circumstances, it is our opinion that the complaint sufficiently alleges a cause of action against the City to require overruling a motion to dismiss.

The Motion to Dismiss also claims that it appears from the complaint that the plaintiff is only a partial subrogee in that it paid only a part of the loss sustained by the fire to the Arthur F. Schultz building and, therefore, it is not a real party in interest and that the insured should be joined. Since Arthur F. Schultz Company, a corporation, the owner of the building, is a citizen of Pennsylvania, this would automatically oust the jurisdiction of this court.

Regardless of what the Pennsylvania rule may be with respect to splitting causes of action, this is a procedural matter which is governed by the federal Rules of Civil Procedure. See Rule 17(a). The leading case in this area is the decision of the U. S....