The opinion of the court was delivered by: JACKSON
THOMAS PENFIELD JACKSON, U.S. District Judge.
Plaintiff Federal Insurance Company ("Federal"), a New Jersey property and casualty insurer, brings this action, sounding in both contract and tort, as subrogee of an insured homeowner to whom it paid in excess of $ 100,000 for water damage done to his Washington, D.C., dwelling and its contents. Defendant Thomas W. Perry, Inc. ("Perry"), a Delaware heating oil retailer based in Washington's Maryland suburbs, allegedly failed in a duty to restart the insured's oil-fired hot water furnace in sub-freezing weather in January of 1984, in consequence of which his plumbing burst.
Upon the following facts, as found by the Court in accordance with Fed.R.Civ.P. 52(a) upon trial without a jury, the Court concludes, for the reasons hereinafter set forth, that judgment must be given for plaintiff.
In and prior to January, 1984, plaintiff's insured, Joseph Smith, Jr. ("Smith"), a self-employed builder, occupied a single-family residence at 3109 Garfield Street, N.W., in the District of Columbia. He also owned a vacation home in Bethany Beach, Delaware, a resort on the Atlantic coast some 150 miles distant from Washington. Smith had for years been a home heating oil customer of Perry's for his Washington, D.C., residence, establishing over time, however, an indifferent credit history with the firm which, in August, 1983, resulted in his being taken off Perry's "automatic delivery" schedule and placed on a "C.O.D." payment basis.
On December 14, 1983, Smith ordered, received, and paid for a delivery of 200 gallons of heating oil from Perry. On December 22nd he went to his beach house for an extended stay, leaving the Garfield Street house unoccupied, but under intermittent observation by a neighbor, Barbara Meyer, who lived three doors away and would visit it while walking her dog twice a day, and an employee, Jay Hirsch, who came by from his Alexandria, Va., home every other day to check the house, the mail, and the telephone answering machine. Meyer and Hirsch gained entrance to the house by using a door key hidden on the premises.
On Wednesday, January 11, 1984, both Meyer and Hirsch telephoned Smith at the beach to report to him that the interior of his house was cold and apparently without heat from the furnace. Smith asked Hirsch to check to see if fuel remained in the tank; Hirsch did so, found the tank empty, and reported it to Smith. About 7:00 that evening, therefore, Smith called Perry and requested a delivery of oil and a "restart" of the furnace. Perry apparently agreed to do both, although what precisely it was to do about starting the furnace was unspecified. The following morning, when Meyer reported to Smith that the house remained cold, Smith once again called Perry and was assured that service was "on its way."
(Hirsch had earlier been instructed to leave the house unlocked to enable Perry's service personnel to enter to restart the furnace).
Perry's dispatcher directed the regular driver on the route serving Smith to deliver the oil and to "try to start the furnace." The driver delivered approximately 150 gallons of oil through an exterior fillpipe, but was unable, upon entering the house, to get the furnace started.
He called the dispatcher from his truck to ask that a serviceman be sent out. The dispatcher either made out a service ticket or reported the problem to the service manager orally, imparting as well the information that Smith was out-of-town. The service manager, however, purposely ignored it, for several specific reasons: the company, he thought, had no "authorization" to go back into Smith's house; he didn't know if the door would still be unlocked; he didn't know how to get in touch with Smith to get authorization or access; and, "I wanted to know who was going to pay me." (Tr. 175-76).
On Friday and Saturday, January 13-14, both Meyer and Hirsch visited the house, found it still cold, and reported the fact to Smith who replied that he had been assured by Perry that it would be taken care of.
He took no further action until informed by his daughter on Sunday, January 15th, that she had gone to the house and found the plumbing ruptured and the interior in shambles caused by escaping water.
Federal retained an experienced insurance adjuster to settle Smith's claim under his homeowner's policy. Ultimately Smith and the adjuster agreed on a repair cost figure for the premises, (including temporary protection, demolition and debris removal) of $ 65,073.68. Contents damage was negotiated to $ 25,039.48, and the adjuster allowed Smith approximately $ 11,000 in additional living expenses until the house was once more habitable in July, 1984. It is the sum of those amounts paid to Smith under the several coverages afforded by its homeowner's policy that Federal seeks to recover from Perry here, upon several theories of contract and tort. Perry denies any contractual duty to Smith, asserts that it was duly careful in doing what it did to restore heat to the house; submits that there is a failure of proof as to the proximate cause of the damage; and contends that Smith himself was negligent or assumed the risk of frozen water pipes when he left his home untended in mid-winter with the plumbing system undrained. Perry also questions the reasonableness of the repair costs and Smith's additional living expenses while awaiting the rehabilitation of his residence.
The evidence supports the conclusion that Smith and Perry formed a contract, but the terms of that contract, whether characterized as express or implied, do not support the claim for damages for its breach that Federal makes here. At best, Perry contracted to deliver oil, at its current market price, and to have its driver attempt to restart Smith's furnace at no additional charge, in consideration of Smith's express or implied promise to pay for the commodity when billed for it. Nothing in the course of communications between Smith and Perry supplies a basis upon which to conclude that Perry had promised to do whatever might have been necessary to assure that Smith's house was adequately heated, or even that the furnace would be restarted irrespective of difficulties encountered.
Plaintiff also advances, however, a theory supporting a recovery in tort which, the Court concludes, compels the award of the damages sought. The theory has been variously termed (e.g., the "doctrine of negligent rescue" or the "good Samaritan rule"), but is presently expressed, in the words of the Restatement (Second) of Torts, § 323 (1965), as a rule imposing liability for ...