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Erie Insurance Exchange v. AC&R Foam Insulators, LLC

United States District Court, District of Columbia

September 26, 2016

ERIE INSURANCE EXCHANGE, as Subrogee for Empire Lofts Condominium Ass'n Plaintiff,


          ELLEN SEGAL HUVELLE District Judge.

         Plaintiff Erie Insurance Exchange, acting as subrogee of Empire Lofts Condominium Association, seeks recovery against defendant AC&R Foam Insulators, LLC, for payments plaintiff made to its insured following a March 15, 2014 fire at the Empire Lofts building. (Am. Compl., Jan. 22, 2016 [ECF No. 14].) Plaintiff alleges that defendant negligently installed flammable soundproofing foam too close to a chimney flue, and that defendant's negligence caused the fire and resulting damage to the building. (Id.) Before the Court is defendant's motion for summary judgment (Def.'s Mot., May 25, 2016 [ECF No. 22]), plaintiff's opposition (Pl.'s Opp., June 23, 2016 [ECF No. 23]), and defendant's reply (Def.'s Reply, July 11, 2016 [ECF No. 24]). For the reasons that follow, defendant's motion will be denied.


         In January 2013, Pierson Stoecklein, then-owner of Unit F of Empire Lofts, hired contractor Renaissance Development to reduce the noise transfer between his apartment and the one above it-Unit H. (Def.'s Mot., Ex. 1, ¶ 3.) On April 5, 2013, Renaissance Development subcontracted with defendant to install foam soundproofing in Unit F. (Def.'s Mot., Ex. 4.)[1]

         There is a fireplace along one side of the living room in Unit F. (Id., Ex. 2, ¶ 11.) Behind the fireplace is a “chimney chase, ” an enclosed space that protrudes a few feet from the wall and contains the chimney-flue system for Unit F and for two other apartments at Empire Lofts. (Id.) The hot air and smoke from the fireplaces in those apartments flow upward and out of the building through a chimney on the roof. (See Pl.'s Opp., Ex. A, ¶ 32.) The flooring next to the fireplaces, which the parties refer to as a “hearth, ” is made of stone, a different material than the rest of the flooring found in the apartments. (Pl.'s Opp., Ex. A, ¶ 26.)[2]

         On April 6, 2013, defendant sent a team of workers to Empire Lofts in order to install Icynene LD-C-50, a foam insulation, between Unit F and Unit H. (Def.'s Mot., Ex. 2, ¶ 10.) Renaissance had already removed the drywall from the ceiling, leaving the area between the ceiling of Unit F and the floor of Unit H exposed. (Id., Ex. 2, ¶ 8.) The walls of Unit F were already covered in plastic sheeting when defendant's employees arrived, and beneath the plastic, the drywall was still intact. (See Pl.'s Opp., Ex. D, at *26, ¶¶ 3-4.) Defendant's employees covered the floors with plastic before beginning the foam installation. (Id., Ex. D, at *26, ¶¶ 7-8.) In order to install the foam, defendant's employees ran a hose from a truck outside filled with liquid Icynene to Unit F. (Id., Ex. F, at *17, ¶¶ 12-17.) The hose was connected to a “small gun” that allows the foam to be sprayed on the desired target from eight to twelve inches away. (Id., Ex. D, at *22, ¶¶ 23-24.) Adam Collins, defendant's employee, sprayed the foam insulation throughout the exposed space between Unit F and Unit H. (Id. Ex. D, at *27, ¶ 3-5.)

         On March 15, 2014, a fire ignited at Empire Lofts. (Def.'s Mot., Ex. A, ¶ 8.) The Empire Lofts Condominium Association thereafter filed this action, alleging that defendant was negligent in installing the soundproofing foam too close to the apartment's chimney-flue system, causing the fire and subsequent damage. (Compl., May 29, 2015 [ECF No. 1].)[3]

         Defendant argues that it is entitled to judgment as a matter of law based on plaintiff's failure to adduce evidence that defendant negligently installed the soundproofing. Defendant principally reasons that, in order to prove negligence, plaintiff would have to demonstrate that (1) defendant “had notice of a chimney chase containing a ‘chimney flue system' located behind a wall in Unit F, ” and (2) that defendant “despite such notice . . . installed foam insulation behind that wall.” (Def. Reply, July 11, 2016, at *2.) As explained below, defendant misunderstands the nature of plaintiff's burden in this negligence action.



         Summary judgment is granted when there are no genuine issues as to any material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue of material fact is one that could change the outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Summary judgment is appropriate only when the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1984). The moving party bears the responsibility of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant meets this standard, the burden of proof shifts to the non-movant, who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250.


         In a negligence action arising under the tort laws of the District of Columbia, plaintiff bears the burden of establishing “the applicable standard of care, show[ing] that the defendant deviated from it, and demonstrat[ing] that defendant's conduct was the proximate cause of [the] injury.” Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 199 (D.C. 1991) (citing Toy v. Dist. of Columbia, 549 A.2d 1, 6 (D.C. 1988)).

         Defendant acknowledges that “the origin and cause of the fire are matters of disputed expert opinion, ” but contends that there is no dispute as to “the facts concerning the manner and location of [defendant's] installation of the Icynene LD-C-50 foam insulation product, the information available to [defendant] . . . at the time the work was performed, and the conditions in Unit F when [defendant] performed its work.” (Def. Mot., May 25, 2016, at *3.) According to defendant, this means that plaintiff “has no facts demonstrating negligence on the part of” defendant since defendant “had no notice of a chimney chase . . . and it did not ...

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