Vermont Mut. Ins. Co. v. Chimney Works, No. 108-2-17 Wncv (Tomasi, J., Feb. 10, 2020).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
VERMONT SUPERIOR COURT
SUPERIOR COURT CIVIL DIVISION Washington Unit Docket No. 108-2-17 Wncv
│ Vermont Mutual Insurance Co., Inc., │ Plaintiff │ │ v. │ │ Chimney Works, Inc., et al., │ Defendants │ │
Opinion and Order on Motion for Summary Judgment
On February 17, 2014, Building 3 of the Mountainside Condominiums in
Warren, Vermont caught fire and was completely destroyed. Plaintiff Vermont
Mutual Insurance Co. provided business owner’s insurance to the Mountainside
Condominium Association and homeowner’s insurance to numerous Building 3 unit
owners. In this subrogation action, Vermont Mutual seeks damages from several
defendants alleged to have responsibility for the fire and resulting losses. Among
them is Defendant Steven Mason, d/b/a Mad Sweeper Chimney Cleaning Service,
who is alleged to have negligently conducted the most recent, 2012 and 2013,
annual fireplace inspections in Building 3 prior to the fire. Mr. Mason has filed a
motion for summary judgment arguing that Vermont Mutual’s claim against him is
too speculative to present a triable issue for the jury.
Summary judgment is appropriate if the evidence in the record, referred to in
the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a
matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, a party
fails to make a showing sufficient to establish an essential element of the case on
which the party will bear the burden of proof at trial). The Court derives the
undisputed facts from the parties’ statements of fact and the supporting documents.
Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A
party opposing summary judgment may not simply rely on allegations in the
pleadings to establish a genuine issue of material fact. Instead, it must come
forward with deposition excerpts, affidavits, or other evidence to establish such a
dispute. Murray v. White, 155 Vt. 621, 628 (1991). Speculation is insufficient.
Palmer v. Furlan, 2019 VT 42, ¶ 10, 215 A.3d 109, 113.
Vermont Mutual claims that the fire began when the fireplace in Unit 82,
occupied by renters for the weekend, overheated and ignited the subflooring
underneath the firebox. The fire then quickly spread throughout the building,
destroying it completely. Vermont Mutual claims that the Unit 82 firebox had
improper aftermarket glass doors installed on it that caused ash to build up and
clog bottom venting that, when working properly, ensured that external firebox
temperatures remained safe. It alleges that unsafe external temperatures caused
by the blocked venting caused the subflooring beneath the firebox to ignite.
Mr. Mason was hired by the Association to inspect and clean, if necessary,
the fireplaces in Building No. 3 in 2012 and 2013. There is no dispute that upon
2 inspecting the Unit 82 fireplace, Mr. Mason failed to note the improper glass doors,
determined that the fireplace did not need to be cleaned, and did not clean any ash
or other material from the bottom venting. Mr. Mason claims that Vermont Mutual
lacks sufficient evidence to reach a jury on causation. Specifically, he maintains
that it lacks evidence as to the issues of whether the bottom venting, in fact, was
blocked by ash when he inspected it and whether it was blocked on the night of the
fire. This is the only issue presented on summary judgment.
The record includes no eyewitness testimony from anyone who saw that the
bottom venting of the Unit 82 fireplace was or was not blocked prior to the fire. The
Unit 82 firebox itself was recovered from the rubble after the fire and, in that
unsettled state, could not reveal the pre-fire condition of the venting. Instead,
Vermont Mutual’s evidence on these issues consists largely of the testimony of its
experts: David Toler, Leo Herrmann, James Cruise, and Howard DeMatties.
In simple and summary terms, Vermont Mutual’s experts are anticipated to
testify as to the following conclusions. According to Mr. Herrmann, Vermont
Mutual’s fireplace expert, the failure of chimney sweeps, including Mr. Mason, to
properly clean the bottom venting for at least the 10 years leading up to the fire
would have naturally resulted in clogged bottom vents sufficient to generate the
overheating condition that Mr. Toler, Vermont Mutual’s engineering expert, has
concluded was the cause of the fire. Mr. Toler has demonstrated by testing
exemplar units that such clogging would generate sufficient external heat and
eventually cause the subflooring to combust, and that this was the cause of the fire.
3 He also has concluded that repeatedly heating the subflooring would have reduced
the temperature at which it eventually would combust, and thus the fire in the
fireplace need not have been a big one on the night of the incident to ignite the
subflooring.
Mr. Cruise, Vermont Mutual’s fire investigation expert, found that fireboxes
in other Association buildings, similar to the one in Unit 82, had clogged bottom
venting upon investigation following the Building 3 fire. Mr. DeMatties, Vermont
Mutual’s electrical expert, eliminated electrical wiring and lighting, the only other
suspects physically proximate to where the fire originated, as potential ignition
sources.
The upshot of these experts’ conclusions, if believed, is that blockage of the
bottom venting, which a chimney sweep such as Mr. Mason should have discovered
upon inspection and remedied but did not, was the likely cause of the fire.
In arguing that the evidence of causation in this case is insufficient to reach
the jury, Mr. Mason compares this case to Bernasconi v. City of Barre, 2019 VT 6,
206 A.3d 720, and Maciejko v. Lunenburg Fire District No. 2, 171 Vt. 542 (2000).
Neither case aids Mr. Mason’s summary judgment argument, however.
In Bernasconi, the plaintiff fell into an obscured hole in a graveyard operated
by a municipality and was injured. He claimed that the municipality was negligent
insofar as its grounds inspection procedures failed to uncover the hole in time to
ameliorate its risks before it injured the plaintiff. The claim failed, however,
because the plaintiff came forward with no evidence of how long the hole may have
4 existed prior to the injury. “[W]ithout evidence as to how long the hole existed,
plaintiff cannot prove that any lack of diligence by the [municipality] in failing to
timely inspect for and repair holes caused his injury.” Bernasconi, 2019 VT 6, ¶ 13.
In Maciejko, a municipal sewer system backed up into the plaintiffs’
basement causing damages. The plaintiffs asserted that the municipality was
negligent insofar as it had no sewer inspection procedures and, thus, failed to
identify the sewer main obstruction that caused the backup in time to ameliorate its
risks before it injured the plaintiffs. The claim failed because the plaintiffs came
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Vermont Mut. Ins. Co. v. Chimney Works, No. 108-2-17 Wncv (Tomasi, J., Feb. 10, 2020).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
VERMONT SUPERIOR COURT
SUPERIOR COURT CIVIL DIVISION Washington Unit Docket No. 108-2-17 Wncv
│ Vermont Mutual Insurance Co., Inc., │ Plaintiff │ │ v. │ │ Chimney Works, Inc., et al., │ Defendants │ │
Opinion and Order on Motion for Summary Judgment
On February 17, 2014, Building 3 of the Mountainside Condominiums in
Warren, Vermont caught fire and was completely destroyed. Plaintiff Vermont
Mutual Insurance Co. provided business owner’s insurance to the Mountainside
Condominium Association and homeowner’s insurance to numerous Building 3 unit
owners. In this subrogation action, Vermont Mutual seeks damages from several
defendants alleged to have responsibility for the fire and resulting losses. Among
them is Defendant Steven Mason, d/b/a Mad Sweeper Chimney Cleaning Service,
who is alleged to have negligently conducted the most recent, 2012 and 2013,
annual fireplace inspections in Building 3 prior to the fire. Mr. Mason has filed a
motion for summary judgment arguing that Vermont Mutual’s claim against him is
too speculative to present a triable issue for the jury.
Summary judgment is appropriate if the evidence in the record, referred to in
the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a
matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, a party
fails to make a showing sufficient to establish an essential element of the case on
which the party will bear the burden of proof at trial). The Court derives the
undisputed facts from the parties’ statements of fact and the supporting documents.
Boulton v. CLD Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A
party opposing summary judgment may not simply rely on allegations in the
pleadings to establish a genuine issue of material fact. Instead, it must come
forward with deposition excerpts, affidavits, or other evidence to establish such a
dispute. Murray v. White, 155 Vt. 621, 628 (1991). Speculation is insufficient.
Palmer v. Furlan, 2019 VT 42, ¶ 10, 215 A.3d 109, 113.
Vermont Mutual claims that the fire began when the fireplace in Unit 82,
occupied by renters for the weekend, overheated and ignited the subflooring
underneath the firebox. The fire then quickly spread throughout the building,
destroying it completely. Vermont Mutual claims that the Unit 82 firebox had
improper aftermarket glass doors installed on it that caused ash to build up and
clog bottom venting that, when working properly, ensured that external firebox
temperatures remained safe. It alleges that unsafe external temperatures caused
by the blocked venting caused the subflooring beneath the firebox to ignite.
Mr. Mason was hired by the Association to inspect and clean, if necessary,
the fireplaces in Building No. 3 in 2012 and 2013. There is no dispute that upon
2 inspecting the Unit 82 fireplace, Mr. Mason failed to note the improper glass doors,
determined that the fireplace did not need to be cleaned, and did not clean any ash
or other material from the bottom venting. Mr. Mason claims that Vermont Mutual
lacks sufficient evidence to reach a jury on causation. Specifically, he maintains
that it lacks evidence as to the issues of whether the bottom venting, in fact, was
blocked by ash when he inspected it and whether it was blocked on the night of the
fire. This is the only issue presented on summary judgment.
The record includes no eyewitness testimony from anyone who saw that the
bottom venting of the Unit 82 fireplace was or was not blocked prior to the fire. The
Unit 82 firebox itself was recovered from the rubble after the fire and, in that
unsettled state, could not reveal the pre-fire condition of the venting. Instead,
Vermont Mutual’s evidence on these issues consists largely of the testimony of its
experts: David Toler, Leo Herrmann, James Cruise, and Howard DeMatties.
In simple and summary terms, Vermont Mutual’s experts are anticipated to
testify as to the following conclusions. According to Mr. Herrmann, Vermont
Mutual’s fireplace expert, the failure of chimney sweeps, including Mr. Mason, to
properly clean the bottom venting for at least the 10 years leading up to the fire
would have naturally resulted in clogged bottom vents sufficient to generate the
overheating condition that Mr. Toler, Vermont Mutual’s engineering expert, has
concluded was the cause of the fire. Mr. Toler has demonstrated by testing
exemplar units that such clogging would generate sufficient external heat and
eventually cause the subflooring to combust, and that this was the cause of the fire.
3 He also has concluded that repeatedly heating the subflooring would have reduced
the temperature at which it eventually would combust, and thus the fire in the
fireplace need not have been a big one on the night of the incident to ignite the
subflooring.
Mr. Cruise, Vermont Mutual’s fire investigation expert, found that fireboxes
in other Association buildings, similar to the one in Unit 82, had clogged bottom
venting upon investigation following the Building 3 fire. Mr. DeMatties, Vermont
Mutual’s electrical expert, eliminated electrical wiring and lighting, the only other
suspects physically proximate to where the fire originated, as potential ignition
sources.
The upshot of these experts’ conclusions, if believed, is that blockage of the
bottom venting, which a chimney sweep such as Mr. Mason should have discovered
upon inspection and remedied but did not, was the likely cause of the fire.
In arguing that the evidence of causation in this case is insufficient to reach
the jury, Mr. Mason compares this case to Bernasconi v. City of Barre, 2019 VT 6,
206 A.3d 720, and Maciejko v. Lunenburg Fire District No. 2, 171 Vt. 542 (2000).
Neither case aids Mr. Mason’s summary judgment argument, however.
In Bernasconi, the plaintiff fell into an obscured hole in a graveyard operated
by a municipality and was injured. He claimed that the municipality was negligent
insofar as its grounds inspection procedures failed to uncover the hole in time to
ameliorate its risks before it injured the plaintiff. The claim failed, however,
because the plaintiff came forward with no evidence of how long the hole may have
4 existed prior to the injury. “[W]ithout evidence as to how long the hole existed,
plaintiff cannot prove that any lack of diligence by the [municipality] in failing to
timely inspect for and repair holes caused his injury.” Bernasconi, 2019 VT 6, ¶ 13.
In Maciejko, a municipal sewer system backed up into the plaintiffs’
basement causing damages. The plaintiffs asserted that the municipality was
negligent insofar as it had no sewer inspection procedures and, thus, failed to
identify the sewer main obstruction that caused the backup in time to ameliorate its
risks before it injured the plaintiffs. The claim failed because the plaintiffs came
forward with no evidence of how long the obstruction may have existed. “Without
this finding, it is impossible to conclude that regular maintenance would have
prevented the obstruction.” Maciejko, 171 Vt. at 543.
There is no analogous gap in the chain of causation in this case. Mr. Mason
argues that there is no evidence that the bottom venting of the Unit 82 firebox was
clogged. But Vermont Mutual does not lack such evidence. The record contains
evidence supporting the conclusion that the firebox was likely blocked at the time of
Mr. Mason’s work, and it is undisputed that he did not check for blockage or clean
ash from that area. One of its experts, Mr. Herrmann, has concluded that the
failure of anyone to professionally clean the bottom venting, particularly given the
affixed, improper aftermarket windows, naturally would have caused the venting to
be blocked at the relevant times. He expressly asserts: “Given the sweeps’ failure to
properly clean this bottom vent for over a decade, it is all but guaranteed that the
bottom vent was sufficiently clogged during that time frame, including the night of
5 the fire, causing the fireplace to overheat, creating a fire hazard, as demonstrated
by David Toler’s testing.” Letter from Leo Herrmann to Attorney Boxer 4 (dated
October 4, 2019), Ex. F to Vermont Mutual’s Opposition (filed October 9, 2019).
While Vermont Mutual’s claim against Mr. Mason may or may ultimately
succeed with the jury, it is not so devoid of support that it is unreasonably
speculative and lacking a basis in evidence. Nor does the evidence suffer from the
same type of total evidentiary gap that was fatal to the claims in Bernasconi and
Maciejko.
Conclusion
For the foregoing reasons, Mr. Mason’s motion for summary judgment is
denied.
Dated this __ day of February 2020 at Montpelier, Vermont.
_____________________________ Timothy B. Tomasi, Superior Court Judge