Wallace v. Trane Co., 011321 RISUP, PC-2016-5339

Docket Nº:C. A. PC-2016-5339
Opinion Judge:GIBNEY, P.J.
Attorney:Ruth Wallace • Vincent L. Greene, IV, Esq. Carrier Corp.; Electrolux Home Care Products; United Technologies Corp. • James A. Ruggieri, Esq. • Stephen P. Cooney, Esq. Cetrulo, LLP; Defendants' Liaison Counsel • Lawrence G. Cetrulo, Esq. • Stephen T. Armato, Esq. Ferguson Enterprises, Inc.; The Ga...
Case Date:January 13, 2021
Court:Superior Court of Rhode Island




C. A. No. PC-2016-5339

Superior Court of Rhode Island, Providence

January 13, 2021

Ruth Wallace • Vincent L. Greene, IV, Esq.

Carrier Corp.; Electrolux Home Care Products; United Technologies Corp. • James A. Ruggieri, Esq. • Stephen P. Cooney, Esq.

Cetrulo, LLP; Defendants' Liaison Counsel • Lawrence G. Cetrulo, Esq. • Stephen T. Armato, Esq.

Ferguson Enterprises, Inc.; The Gage Company, Inc. • Anthony S. Aprea, Esq. • Stephen P. Harten, Esq.

General Electric Co.; The Heil Company • Jeffrey M. Thomen, Esq.

Metropolitan Life Insurance • Mary C. Dunn, Esq.

R.W. Beckett Corp. • David H. Stillman, Esq.

Sears, Roebuck & Co. • Margreta Vellucci, Esq.

The Marley-Wylain Company • Jonathan F. Tabasky, Esq. • Kenneth R. Costa, Esq. • Paul E. Dwyer, Esq. • Michael F. McVinney, Esq. • Clint D. Watts, Esq.

Thermo Products, LLC • Anthony J. Sbarra, Esq. • John R. Felice, Esq.

Trane Company • Brian A. Fielding, Esq.

Wayne/Scott Fetzer Company • Brian C. Newberry, Esq. • Adam Benevides, Esq.



The Defendant Wayne/Scott Fetzer Company (Defendant or Wayne) seeks summary judgment in this personal injury action brought by Plaintiffs Lester Wallace, Personal Representative of the Estate of Gerard Wallace, and Ruth Wallace, the Decedent's wife (Plaintiffs). The Defendant argues that there are no genuine issues of material fact remaining for trial, as the Plaintiffs have not offered evidence that Gerard Wallace (Mr. Wallace or the Decedent) was exposed to an asbestos-containing Wayne product. Plaintiffs object to the motion, arguing that there are genuine issues of material fact and that the use of third-party asbestos products in relation to Wayne's burners was foreseeable to the Defendant. Plaintiffs also raise a negligence claim based on Defendant's failure to warn of associated hazards. This Court's jurisdiction is pursuant to G.L. 1956 § 8-2-14.


Facts and Travel

The Decedent and his wife, Ruth Wallace, filed this instant action on November 16, 2016 after the Decedent was diagnosed with mesothelioma in September 2016. (Def.'s Mem. Supp. Mot. Summ. J. (Def.'s Mem.), Ex. B (Wallace Dep.), at 69:5-70:7.) The Plaintiffs allege that Mr. Wallace worked as a plumbing-heating installer-repairer for Portland Lehigh Fuel Company from 1949 to 1951, A.R. Wright from 1951 to 1953, Peterson Oil Company from 1954 to 1966, and Southern Maine Vocational Technical Institute from 1966 to 1985. Plaintiffs allege that Mr. Wallace, while at work, inhaled, absorbed, ingested, and came into contact with asbestos and asbestos-containing products.

Mr. Wallace grew up in Maine, where he resided for most of his life, with the exception of the three years that he served in the Navy beginning in 1943. (Wallace Dep. 13:6-11, 79:2-24, 87:4-21, 90:5-91:2, 95:12-16, 122:16-123:5.) Following his time in the Navy, Mr. Wallace worked in Maine on various jobs including work as a fuel truck driver, service technician, and finally as an instructor at Southern Maine Vocational Technical Institute (later known as Southern Maine Community College) (the College) from 1966 through his retirement in 1985. Id. at 14:11-15:15. Mr. Wallace's exposure allegations in the present motion arise exclusively from his employment at Portland Lehigh Fuel Company (Portland Lehigh), A.R. Wright, and Peterson Oil Company (Peterson Oil), all of which were located in Maine. Id. at 191:24-193:5. In his deposition testimony, Mr. Wallace testified to working with Wayne burners during his oil burner service work at Portland Lehigh, A.R. Wright, and Peterson Oil, which was "almost exclusively residential." Id. at 16:7-15, 191:24-192:23, 196:1-7.

Mr. Wallace testified to coming into contact with "a lot" of Wayne burners, which were "very popular," mostly doing work with burners used for conversion from coal to oil. Id. at 194:2-6, 199:5-7, 200:1-18. However, Mr. Wallace could not testify specifically as to how many Wayne burners he worked on, the jobs where he did so, nor could he recall the make or model of any of the boilers that used Wayne burners. Id. at 194:9-22, 195:21-24. Conversion jobs, according to Mr. Wallace's testimony, involved removing the doors and grates from the boiler or furnace, installing a combustion chamber, inserting a burner tube into the combustion chamber, and then sealing around the tube of the burner, potentially using asbestos-containing mud. Id. at 40:24-41:22, 200:24-201:5, 201:14-16, 204:3-4, 209:4-8, 278:13-279:10. Mr. Wallace stated that he would have performed "close to" a hundred conversion jobs over the years. Id. at 40:6-23. The removal and reinstallation of the sealing products during conversion caused dust that Decedent breathed. Id. at 43:4-11.

Sometimes, Mr. Wallace said, he would have to patch up the sealant on the yearly overhaul. Id. at 204:9-12, 22-23. Unless he was installing new equipment, Mr. Wallace had to supply the asbestos powder or mud used as a sealant, typically using Johns Manville 450 cement and Eagle 66 mud. Id. at 22:2-13, 24:24-25:6. Mixing this mud with water in preparation for its use also caused dust that Decedent breathed. Id. at 35:12-36:8, 278:13-279:10. While some type of sealant was provided with new burners, see id. at 43:12-19, Mr. Wallace stated that, to his knowledge, the mud he purchased was never provided by burner manufacturers, id. at 279:8-10. He could not testify to the date of manufacture, installation date, or service history of the Wayne burners he serviced, nor did he know whether any Wayne burners or other components were original to any boilers he serviced. Id. at 196:14-197:6, 198:10-13. However, during these years, Wayne produced an installation manual for its Model F Oil Burner, which states that an "insulating refractory type combustion chamber is recommended for use with this burner" and recommends seasonal inspection and service. (Pls.' Resp. to Def.'s Mem. (Pls.' Resp.), Ex. A, at 3, 12 ¶¶ E(1) & (2).)

Mr. Wallace died on August 19, 2017. See Pls.' Resp. ¶ 2. The operative Fifth Amended Complaint was filed on November 15, 2017, after his death. Defendant filed its motion for summary judgment on July 9, 2019. Plaintiffs filed their objection on July 29, 2019. Defendant subsequently filed a reply on August 13, 2019. Hearing on this matter was held on August 19, 2019. Plaintiffs subsequently filed a motion to dismiss all loss of consortium claims on October 1, 2019.


Parties' Arguments

Defendant moves for summary judgment under Maine law, pursuant to Rule 56 of the Maine Rules of Civil Procedure.[1] Def.'s Mem. 1-2; see also Def.'s Mot. Apply Foreign Law. Defendant argues that Plaintiffs have failed to produce evidence showing that Mr. Wallace worked with or around asbestos-containing components manufactured, sold, supplied, or in any way original to any Wayne product. (Def.'s Mem. 2, 10-17.) Defendant states that if Plaintiffs cannot prove that asbestos exposure occurred due to Mr. Wallace's exposure to asbestos-containing products original to a Wayne product (i.e., not replacement mud or cement manufactured or sold by third parties), then Plaintiffs have not made out a prima facie case under Maine law, and Defendant is entitled to summary judgment. Id. at 15-16. Assuming Defendant is entitled to summary judgment on the personal injury claim, Defendant argues that Plaintiff Ruth Wallace's loss of consortium and conspiracy claims (which are dependent upon the underlying tort liability asserted through her late husband's claim) are similarly barred. Id. at 17-18.

Plaintiffs do not contest the application of Maine law, nor the propriety of summary judgment as it relates to their conspiracy claim. (Pls.' Resp. 12.) They oppose summary judgment on their other claim, arguing that inferences reasonably drawn from the evidence in the record create a dispute of material fact as to whether Mr. Wallace's asbestos-related disease was caused by exposure to asbestos while working with Wayne's products. Id. at 13. Plaintiffs contend that, under a strict liability theory, the foreseeable and recommended use of asbestos refractory material in relation to the combustion chambers of its oil burners creates liability for Wayne even where no evidence of exposure can be linked to Wayne's original products. Id. at 14-15. Plaintiffs also argue that Wayne was negligent, as it had a duty to warn of asbestos used in conjunction with its products. Id. at 15-16.

In its Reply to Plaintiffs' Response, Defendant argues that this Court has rejected foreseeability and an attendant duty to warn under similar circumstances. (Def.'s Reply 7-9.) Defendant also states that "recommending a category of heat insulating material cannot be construed as advocating the use of asbestos. . . ." Id. at 9 n.2. Defendant reiterates that it is entitled to summary judgment, because inferences from circumstantial evidence must be established beyond mere speculation, which Defendant claims Plaintiffs have not done. Id. at 9-11.


Standard of Review

Initially, the Rhode Island Supreme Court has said that "[w]e apply our own procedural law, . . . 'even if a foreign state's substantive law is applicable.'" DeFontes v. Dell, Inc., 984 A.2d 1061, 1067 (R.I. 2009) (quoting McBurney v. The GM Card, 869 A.2d 586, 589 (R.I. 2005)). "'Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously.'" DeMaio v. Ciccone, 59 A.3d 125, 129-30 (R.I. 2013) (quoting Estate of Giuliano v. Giuliano, 949 A.2d 386, 390 (R.I. 2008)). Therefore, "only if the case...

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