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Indemnity Insurance Co. of North America v. Gross-Given Manufacturing Co.

January 11, 2010


The opinion of the court was delivered by: Schiller, J.


Plaintiff Indemnity Insurance Company of North America ("ACE-INA") brings this action against Defendant Gross-Given Manufacturing Company ("Gross-Given") for damages resulting from a fire that caused property damage to an elementary school that Plaintiff insured. Plaintiff asserts strict liability and breach of warranty claims. On November 23, 2009 this matter was tried without a jury. The Court now enters the following Findings of Fact and Conclusions of Law as required by Federal Rule of Civil Procedure 52(a). For the reasons that follow, The Court finds for Defendant Gross-Given and against Plaintiff ACE-INA.


A. The Fire

A fire took place in the faculty lunch room at Erdenheim Elementary School at approximately 10:10 p.m. on July 27, 2007. (Tr. at 9-11, 13, 63, 119.) Few people were working that day because it was summertime and school was out of session. (Id. at 49.) The last two employees to leave for the day did so between 5:00 and 6:00 p.m., at which point the school was vacant for the night. (Id. at 37, 49-50.) The outer doors to the school were locked behind the last employees. (Id. at 37, 49.)

The teachers' lounge housed the following appliances: a soda machine, a refrigerator, a coffee urn, a toaster oven, a microwave, and a tabletop Rowe 499 Showcase Jr. vending machine ("vending machine" or "machine") that sat atop a metal cabinet. (Id. at 14-16.)

The electrical feed to the appliances started at a duplex plug receptacle at the wall. (Id. at 195.) Plugged into that socket was a short extension cord, which split into three outlet openings. (Id.) A yellow extension cord was plugged into one of the three outlet openings of the short extension cord. (Id.) A power strip was then plugged into the single outlet of the yellow extension cord. (Id.) Plugged into the power strip were the refrigerator and microwave. (Id.) The vending machine was plugged into one of the two remaining outlets of the short extension cord. (Id.) A large electric coffee urn was also found in the area.

The vending machine had been in the same position for seven or eight years prior to the fire. (Id. at 39, 40-41, 50-51.) Thus, the vending machine was at least seven or eight years old at the time of the fire.*fn1 The exact age of the machine could not be conclusively determined because its serial number was destroyed in the fire, making its history impossible to trace. (Id. at 39, 51, 180.)

Rudy Tacconelli began servicing the vending machine approximately 2 1/2 years before the fire. (Id. at 133.) Keys are required to open the machine, which is necessary to either refill it with snacks or to remove money from it, and only Tacconelli's vending company had those keys. (Id. at 40.) Tacconelli kept a service log for the machine during the 2 1/2 year period that he serviced it. (Id. at 134-35.) There is no record of the use or service history of the vending machine before Tacconelli began servicing it. (Id. at 117, 118, 133.) While the vending machine was at the school, it experienced no problems or malfunctions, and it never required repair. (Id. at 41, 46, 51, 138-39.) There was no evidence of abuse to the machine, or tampering with it. (Id. at 289.) The vending machine was last serviced on May 31, 2007. (Id. at 135.) At that time, it was not restocked with snacks, because in the summertime the machine was seldom used.*fn2 (Id. at 136.) If there were any snacks left in the machine at the time of the fire, their type and quantity are unknown. (Id. at 120, 136-37.) It is clear that the machine was not being used at the time of the fire--i.e. no one was purchasing a snack. (Id. at 119-20.)

The vending machine, which was constructed of a steel housing and plastic materials, was severely damaged by the fire. (Id. at 92, 105.) Combustible items within the machine included the plastic lid, the plastic devices that hold the snacks, and non-propagating insulation on the wiring.*fn3 (Id.) After the fire, all of the plastic from the machine was consumed, leaving only the metal parts intact. All of the insulation on the wires in the machine was consumed, and the wires were left a dark red color, indicating exposure to significant heat. (Id. at 108.)

B. The Origin and Cause of the Fire

Fire investigation typically begins by determining where a fire started ("origin"), before it is determined how it started ("cause"). In general, a fire spreads upward and outward, leaving a V-shaped mark on walls and surfaces affected by the fire. This mark is called a "V pattern," and is useful to fire investigators in determining origin. (Id. at 17, 27.) The lowest point of a "V pattern" is suggestive of an origin. (Id.) Areas of calcination (indicative of intense heat) are also helpful in determining origin. (Id. at 25.) Another relevant consideration in determining origin is "drop down," a situation in which combustible materials are set ablaze by an initial fire, then fall down and start other fires. (Id. at 19.) The concept of "drop down" is important when a fire scene has multiple "V patterns" and an investigator is trying to establish which fire started first.

The origin of the fire in this case is uncertain. There was a burn pattern that may have emanated from the snack machine, and extended upward in a "V pattern." (Id. at 17-18.) However, there is also an area of calcination just above the floor on the wall below and to the right of the cabinet on which the vending machine sat. (Id. at 25-26, 29.) A clear "V pattern" emanates from this area of calcination, up through the metal cabinet, the vending machine and the soda machine. (Id. at 29-30.) The yellow extension cord and the coffee urn were located in the area of this burn pattern. (Id. at 30.) Combustible materials in this immediate area included a plastic trash can and a wooden table. (Id. at 20, 125.) The fire may have originated at the snack machine, or the fire may have begun in the low area near the yellow extension cord and coffee urn.

Plaintiff's expert James Bonner opined that the fire originated in the vending machine. (Id. at 83.) He based this conclusion on his observation of a "V pattern" which emanated from the machine, the fact that the vending machine was severely damaged, and his observation that the machine was uniformly damaged on its inside and outside, indicating intense heat. (Id. at 91-92.) However, intense heat in the vending machine does not necessarily indicate that a fire started inside. The National Fire Protection Association, in its publication NFPA 921: Guide for Fire and Explosion Investigations (2004) ("NFPA 921"), Section instructs that an appliance with a steel housing "does not necessarily keep internal components from reaching very high ...

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