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HARTFORD CAS. INS. CO. v. POTOMAC ELEC. POWER CO.

May 22, 1996

HARTFORD CASUALTY INSURANCE COMPANY, Plaintiff,
v.
POTOMAC ELECTRIC POWER COMPANY, Defendant.



The opinion of the court was delivered by: ATTRIDGE

 The Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1332. The parties have waived their right to a jury trial and have consented to trial and entry of a final judgment by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1) & (3).

 Background of Case

 On August 5, 1993, a building located at 5609 Georgia Avenue, N.W., Washington, D.C. 20011 was destroyed by fire. The building was owned by GLM Partnership and leased to Morton Corporation, trading as Morton's. At the time of the incident, Morton's and the partnership were insured by the Plaintiff, Hartford Casualty Insurance Company ("Hartford") which paid them for the losses they sustained as a result of the fire. In turn, Hartford became subrogated to all rights that Morton's and GLM Partnership had for damages up to the extent of Hartford's payments. Hartford now seeks to recover from Potomac Electric Power Company ("Pepco") the money it paid its insureds alleging that Pepco was negligent in failing to properly install, inspect and maintain a watthour meter and watthour meter box *fn1" and breached its contract with its insured by failing to supply electricity in a safe manner; in failing to install equipment that would allow the safe distribution of electricity; in providing defective equipment; and in failing to take the necessary steps to inspect, maintain, repair and monitor its equipment installed on the Morton premises.

 Pepco denies all allegations of negligence and breach of contract and denies that the fire was caused at the watthour meter or watthour meter box. It contends the fire originated at a site other than the watthour meter, and that the original fire later enveloped the watthour meter causing a secondary fire at its site. Pepco further alleged that Hartford's losses were caused by the sole and/or contributory negligence of the Morton's store manager because he failed to notify Pepco when the lights flickered and later went off and when the air conditioning unit began to hum.

 On August 5, 1993, shortly before 9:00 a.m., Sherman G. Ethridge, the store manager of Morton's Department Store, located at 5609 Georgia Avenue, N.W., Washington, D.C., arrived at the premises to begin his routine for opening. Upon entering the store, Ethridge turned off the store alarm, turned on some of the lights and telephoned his Virginia office to advise that he had arrived at the store. He then proceeded to a back office where he continued his routine preparations of opening the store. After leaving the back office, Ethridge proceeded to turn the lights on within the store starting with the Sportswear and Men's Departments and then to the Girls and Lingerie Departments, which had a separate light switch. He then proceeded to the Dress Department to turn on yet another set of lights. On his return from the Dress Department, Ethridge noticed the lights flicker and heard a humming sound, then the lights in the Girls Department and Lingerie went out. The Dress Department lights remained on. Ethridge flicked the light switch for the Girls Department off and on. However, the lights did not come back on so he left the wall switch to those lights in the off position.

 At about that time, Ms. Parker, the head of the Boys Department, arrived. Ethridge informed her the lights were out and explained that on his return from breakfast he would check the circuit breaker or fuse box to see if that was the cause of the outage.

 On his return from breakfast at a nearby deli, and while still on the outside of the store, Ethridge saw smoke coming out of the building at a point where the Girls Department and Lingerie Department met. He ran into the store to warn the employees and tried to call 911 from the telephone at the entrance door as well as from his office but neither telephone was working. Ethridge ran across the street and called 911 from another premises. Shortly thereafter the fire department arrived.

 The electrical circuit panels and meter were located in the basement of the store directly below the Girls' Department. The room in which the electric circuitry and meter were located had a ceiling height of about six and one-half feet. Ethridge, who is six feet three inches tall, barely had room to stand up. The watthour meter and electric circuitry was mounted on a four feet by eight feet plywood panel which was affixed to the south wall of the room. The watthour meter was mounted about five feet above the floor which was concrete. The room was divided by a partition and the area behind the partition served as a storage area. However, nothing was stored in the portion of the room in which the electric circuitry was located. The ceiling was of wood construction and the floor above was supported by two by twelve inch wooden joists.

 The call to the fire department was made about 9:40 a.m. When Harold Lindsey, a District of Columbia Fire Department Inspector, arrived on the scene, the building was fully engulfed in flames. The fire burned completely through the basement ceiling. The joist directly over the area of the watthour meter was completely burned through. The joists to the east of the area where the watthour meter had been located were heavily charred on the west side with little or no charring on the east side of the joists. The extent of fire damage decreased as Lindsey proceeded north from the area of the watthour meter panel board. A portion of the watthour meter and service box were recovered from the debris and found to have sustained heavy copper beading caused by melting copper wire.

 The melting point of copper is 1984 degrees Fahrenheit. Fires fueled by combustible materials do not reach a temperature sufficient to melt copper. Therefore, based on his observations and training, Lindsey concluded that this fire was caused by an electrical fault and originated at the watthour meter.

 The plaintiff's principal expert witness as to the electrical event that triggered the fire was George McDuffie. Dr. McDuffie has a doctoral degree in electrical engineering from the University of Maryland. He is retired from Catholic University, where he served as a faculty member doing teaching and research for many years. While still employed at Catholic University and following his retirement, he has served as a self-employed consultant in electrical engineering matters. He was retained by Hartford to determine the cause of the electrical event that led to the fire which destroyed the Morton premises. McDuffie arrived on the scene on August 7, two days after the fire. He returned on August 9 and began an examination ...


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