JAMES and NANCY WARNER v. EASTERN TANKS, INC., GRANBY INDUSTRIES INC., and VALLEY HEATING AND COOLING INC. v. VIKING SUPPLY COMPANY C.A. No. WC-2011-0182 Superior Court of Rhode Island June 27, 2014 Washington County Superior Court
For Plaintiff Fred L. Mason, Jr., Esq. For Defendant James H. Reilly, Esq., David W. Zizik, Esq., Michelle M. Hawes, Esq. DECISION K. RODGERS, J. Before this Court are Defendant/Third-Party Plaintiff Valley Heating and Cooling Inc. (Valley) and Third-Party Defendant Viking Supply Company's (Viking) motions for summary judgment pursuant to Super. R. Civ. P. 56. Valley asserts it is entitled to judgment as a matter of law on Counts I-VI of Plaintiffs James and Nancy Warner's (Plaintiffs or the Warners) Amended Complaint alleging negligence, breach of contract, breach of implied warranty of fitness for a particular purpose, breach of implied warranty of merchantability, breach of express warranty and strict products liability. Viking asserts that it is entitled to judgment as a matter of law on Valley's Third-Party Complaint seeking indemnity. After a hearing thereon and upon consideration of the parties' memoranda, this Court will now render a Decision.
I Facts and Travel This case arises out of a loss resulting from an oil leak of an exterior oil tank on the Warners' property located at 161A East Beach Road in Charlestown, Rhode Island (the Property). Located in close proximity to the Atlantic Ocean, the Warners sought to replace their old oil tank with one that could withstand the corrosive salt-air environment within which their home is situated. Thus, in or around April 2009, Valley sold and installed an Eastern Tanks, Inc. brand 275-gallon exterior oil tank to the Warners. (Pls.' Am. Compl. at ¶ 5.) Valley had initially bought the tank from Viking, a retailer for the now-defunct Eastern Tanks, Inc., a co-defendant in this suit. (Third-Party Compl. at ¶ 3.) On or about December 18, 2010, however, the oil tank "malfunctioned and/or failed, causing a loss and resulting [in] severe and substantial property damage to the [property.]" (
Id. at ¶ 6.) Thomas Dombrowski (Dombrowski), a professional engineer with Engineering Design & Testing Corp., conducted an initial investigation of the oil tank on January 13, 2011, and concluded that the leak was "the result of an unintended contact of the tank wall with a hard object such as a rock." (Viking's Mem. in Supp. of Mot. for Summ. J., at Ex. F. (Dombrowski Report)). The Warners also had John Certuse (Certuse), a professional engineer with ISE Engineering Inc., perform a second investigation on February 8, 2011. While Certuse could not definitively pinpoint the exact cause of the tank's failure, he concluded that, "[t]he common denominator for the failure of the tank, in our opinion, is due to corrosive conditions likely within the tank [.]"
See Supplemental Report of ISE Engineering Inc. in Supp. of Mem. of Law in Supp. of Obj. to Mot. for Summ. J. (Certuse Report). He further opined that the corrosive condition could have been caused by any number of events, including water that leaked from an overlap in the gutter system located directly above the tank, impurities from an older tank that transferred to the new tank, or "a manufacturer initiated condition [.]"
Id. at 3. The Warners filed suit against Eastern Tanks, Inc. and Valley alleging negligence (Count I), breach of contract (Count II), breach of implied warranty of fitness for a particular purpose (Count III), breach of implied warranty of merchantability (Count IV), breach of express warranty (Count V), and strict liability (Count VI).
See Pls.' Am. Compl. Valley then filed a Third-Party Complaint against Viking seeking indemnity to the extent Valley is held liable to the Warners.
See Third-Party Compl. After conducting discovery, Viking moved for summary judgment on Valley's Third-Party Complaint. Valley similarly moved for summary judgment on the Warners' Amended Complaint. Both motions came on for hearing before this Court on June 16, 2014.
II Standard of Review In reviewing a motion for summary judgment, the preliminary question before this Court is whether there is a genuine issue as to any material fact which must be resolved.
R.I. Hosp. Trust Nat'l Bank v. Boiteau, 119 R.I. 64, 376 A.2d 323 (1977);
O'Connor v. McKanna, 116 R.I. 627, 359 A.2d 350 (1976). If an examination of the pleadings, affidavits, admissions, answers to interrogatories, and other similar matters...
