Chubb Lloyds Insurance Co. v. H.C.B. Mechanical, Inc.

190 S.W.3d 89, 2005 Tex. App. LEXIS 10244, 2005 WL 3315237
CourtCourt of Appeals of Texas
DecidedDecember 8, 2005
Docket01-04-00572-CV
StatusPublished
Cited by10 cases

This text of 190 S.W.3d 89 (Chubb Lloyds Insurance Co. v. H.C.B. Mechanical, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chubb Lloyds Insurance Co. v. H.C.B. Mechanical, Inc., 190 S.W.3d 89, 2005 Tex. App. LEXIS 10244, 2005 WL 3315237 (Tex. Ct. App. 2005).

Opinion

OPINION

SAM NUCHIA, Justice.

After settling a claim by John Knapp for damages caused by a fire at his at residence, Chubb Lloyds Insurance Company (“Chubb”) brought a subrogation suit sounding in negligence against H.C.B. Mechanical, Inc. (“HCB”). The jury found HCB negligent, awarding damages to Chubb in the amount of $40,000, and the trial court rendered judgment on the verdict. Chubb appeals from the damages award, and H.C.B. appeals from the negligence finding. We reverse the trial court’s judgment and render judgment that Chubb take nothing.

BACKGROUND

At approximately 8:42 p.m. on November 7, 2000, a neighbor of John Knapp called the Houston Fire Department to report a fire at Knapp’s home. The home, located in a gated community, was currently undergoing significant renovations. After firefighters put out the fire, the Houston Fire Department’s Arson Bureau was called in to determine the cause of the fire. 1 Mike Zigal was the lead investigator in determining the cause of the fire at the Knapp’s house and wrote the final report. Because they could not identify any accidental cause, Zigal concluded, and his two fellow investigators agreed, that the “catchall” or default option of arson should be listed on the bureau’s report as the cause of the fire, although the investigation remained open.

The day after the fire, Chubb sent out its hired fire investigator, Mike Souther-land, who was employed with S.E.A., Inc. (SEA). After conducting his investigation, Southerland concluded that the fire started from one of three possible accidental causes: (1) a “drop light” 2 used by HCB; (2) a plumbing torch used by HCB; or (3) a carelessly discarded cigarette by an HCB worker. Chubb’s pleadings also alleged that, in the alternative, HCB’s failure to properly secure the residence allowed an arsonist to enter the house and set it alight.

HCB was the sub-contractor hired by CECO Contractors to perform the plumbing work needed to convert one large bathroom into two smaller bathrooms. In order to accomplish this, HCB had to jackhammer two holes in the concrete foundation about five feet apart. Both the Arson Bureau and Southerland agreed that the fire originated in the smaller of the two holes in bathroom area.

For any of Southerland’s fire origination theories to prove correct, the existence of trash or debris in the hole where the fire started was crucial so that there would be a “combustible.” While it was undisputed *92 that there was trash — consisting mostly of “paper and debris” — in the hole, it was not clear from the evidence how it got there. Southerland speculated that HCB’s workers may have left it in the hole and then left for the day. Southerland did testify that he had no personal knowledge of trash being in the hole because the hole had been excavated when he arrived the next day. Nor could anyone explain why the trash found in the hole in which the fire originated was not consumed by the fire. It was also noted that a one-half full gasoline can and other flammable liquids on the premises were not disturbed. Finally, it was undisputed that only HCB had workers at the residence on the day of the fire.

HCB’S LIABILITY

HCB contends that the evidence is legally insufficient to support the jury’s finding of negligence because there is no evidence that it breached its duty or proximately caused the fire at the Knapp residence.

Standard of Review

The supreme court recently discussed the appropriate standard of review for legal sufficiency challenges in City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005). The court concluded that “[t]he final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.... [Ljegal-sufficien-cy review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.” Id. at 827.

When reviewing a no-evidence point of error, “all the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party’s favor.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). “Anything more than a scintilla of evidence is legally sufficient to support the finding.” Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998).

1. The Plumbing Torch Theory

On the day of the fire, Patrick Em-bry, the supervisor of the HCB plumbing crew, used a plumbing torch early in the afternoon to melt out the lead in the joints of the pipes where he was working. When using a plumber’s torch on these types of pipes a material called “yocum” — a rope like substance which prevents the hot lead from leaking into the pipe being worked on — is loosened from the pipes. This material emanates smoke and gives off an unpleasant odor when burned. In the process of using the torch, Embry removed some of the smoldering yocum from the hole he was working in, by having one of the day laborers pick it up with a shovel and take it to the dumpster outside. It is undisputed that Embry was working in the hole opposite from where the fire started, and that he stopped using the torch around 2:00 p.m. Embry and the other HCB workers left the Knapp residence at 5:00 p.m.

Southerland explained his theory as to how the smoldering yocum could have caused the fire as thus:

If we had some smoldering material and to get it out of the way and remove it they threw it back over near this hole that we’re talking about [where the fire originated], actually threw that smoldering material over there or something, it could have laid there and smoldered and set combustibles on fire after they had left for the day.

*93 Chubb relies on three cases in urging us to uphold the jury’s negligence finding. Attempting to draw a parallel to the instant facts, Chubb points to Redman Homes, Inc. v. Ivy for the proposition that a fire investigator (like Southerland) can point to “the possible cause of the fire.” 920 S.W.2d 664, 668 (Tex.1996) (emphasis in Chubb’s Brief). However, Chubb’s argument places the emphasis on the wrong word; in Redman Homes, the fire investigator eliminated all other causes “leaving only the wiring running underneath the bathroom floor as the possible cause of the fire.” Id. (emphasis added).

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Bluebook (online)
190 S.W.3d 89, 2005 Tex. App. LEXIS 10244, 2005 WL 3315237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chubb-lloyds-insurance-co-v-hcb-mechanical-inc-texapp-2005.