U.S. Fidelity & Guar. Co. v. Salida Gas Service Co.

• Decision Date: 21 December 1989
• Docket Number: No. 88CA1289,88CA1289
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY, as Subrogee of J. Scott Brown and Mary B. Brown, Plaintiff-Appellee, v. SALIDA GAS SERVICE COMPANY, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 602

793 P.2d 602

UNITED STATES FIDELITY & GUARANTY COMPANY, as Subrogee of J.

Scott Brown and Mary B. Brown, Plaintiff-Appellee, v. SALIDA GAS SERVICE COMPANY, Defendant-Appellant.

No. 88CA1289.

Colorado Court of Appeals,

Div. I.

Dec. 21, 1989.

Dickson, Everstine, Kelly & Prud'Homme, Michelle Prud'Homme, Denver, for plaintiff-appellee.

Elder & Phillips, P.C., Keith Boughton, Grand Junction, for defendant-appellant.

Opinion by Judge METZGER.

Defendant, Salida Gas Service Company, appeals the judgment finding it negligent for a gas explosion which destroyed the house of the subrogor of plaintiff, United States Fidelity & Guaranty Company (U.S.F. & G.). We affirm in part, reverse in part, and remand with directions.

In 1983, the Browns purchased a house in Crested Butte. In 1984, they hired Rick Lambert to remodel the property. During remodeling, Lambert moved the propane gas meter from a protected place on the porch to the north side of the house. Crested Butte Plumbing Company then connected the piping from the gas meter to the house. At all times relevant here, the gas meter and piping were owned by Salida Gas.

In 1986, the Brown's property was destroyed by a propane gas explosion. U.S.F. & G. paid them $121,578.09 for property damage pursuant to their insurance policy. U.S.F. & G. then initiated this action as subrogee of the Browns against Salida Gas and Crested Butte Plumbing Company.

Before trial, U.S.F. & G. accepted Crested Butte Plumbing's offer of judgment for $5,000, and dismissed it from the lawsuit. Salida Gas then designated several non-parties having fault, including Lambert and Crested Butte Plumbing.

At trial, the jury found Salida Gas to be 60 percent negligent and Lambert 40 percent negligent. It further found that Crested Butte Plumbing was not negligent. After the verdict, Salida Gas moved to reduce the damages by $5,000, the amount of the settlement reached between U.S.F. & G. and Crested Butte Plumbing. The trial court denied the motion and this appeal followed.

I.

Salida Gas initially contends that the trial court committed reversible error when it refused to inform the jury of the settlement between U.S.F. & G. and Crested Butte Plumbing Company. However, Salida Gas has failed to provide us with any record concerning this allegation. Consequently, we must presume that the trial court's determination was correct. Herrera v. Anderson, 736 P.2d 416 (Colo.App.1987). See also Greenemeier v. Spencer, 719 P.2d 710 (Colo.1986).

II.

Salida Gas next contends that the instructions defining its requisite duty of care were erroneous. We find no error.

Liquid propane gas is a dangerous substance that must be handled with care and caution commensurate with its dangerous character. Grange Mutual Fire Insurance Co. v. Golden Gas Co., 133 Colo. 537, 298 P.2d 950 (1956). If an alleged tortfeasor is engaged in the business of supplying propane gas, the jury must be instructed that the highest degree of care is required for the distribution of propane. Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo.1984).

The record shows that the explosion was caused by a leak of propane gas in the high pressure piping connected to the meter outside the house. The gas was trapped against the house by snow, and collected in the crawl space, where it was ignited by the furnace pilot light. Salida Gas owned all distribution equipment up to and including the gas meter, and had the responsibility to maintain that equipment. Since the pipe that was the source of the leak was distribution equipment, the trial court did not err by instructing the jury that Salida Gas owed the highest degree of care. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1980).

III.

Salida Gas also contends that the trial court erred in instructing the jury on the doctrine of res ipsa loquitur. Again, we find no error.

Under that doctrine, a rebuttable presumption of a defendant's negligence arises if the plaintiff's circumstantial evidence shows that: (1) the event is the kind which ordinarily does not occur in the absence of negligence; (2) responsible causes other than the defendant's negligence are sufficiently eliminated by the evidence; and (3) the negligence is within the scope of the defendant's duty to the plaintiff. Holmes v. Gamble, 655 P.2d 405 (Colo.1982).

Here, there is evidence to support the trial court's giving of the res ipsa loquitur instruction. The parties agree that this gas explosion would not have occurred in the absence of negligence. The record shows that other causes were sufficiently eliminated by the passage of time, since almost two years had passed from the time Lambert had moved the meter. And, it is uncontroverted that, at the time of the accident, Salida Gas had exclusive control over the transmission pipes and meter. Therefore, we conclude that the trial court was correct in giving an instruction on res ipsa loquitur.

IV.

Salida Gas finally contends that the trial court erred in not applying § 13-21-111.6, C.R.S. (1987 Repl.Vol. 6A), arguing that that statute mandates a reduction of U.S.F. & G.'s damage award by the amount of the settlement with Crested Butte Plumbing. U.S.F. & G. contends that the trial court properly rejected Salida Gas' contention, and correctly determined that § 13-50.5-105, C.R.S. (1987 Repl.Vol. 6A) applied to the facts of this case. We agree with Salida Gas that the trial court applied the wrong statute.

Section 13-21-111.6, C.R.S. (1987 Repl.Vol. 6A) was enacted in 1986, several years after the promulgation of § 13-50.5-105, C.R.S. (1987 Repl.Vol. 6A). Thus, as the last in time,...