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Seneca Insurance Co. v. Beal

United States District Court, W.D. Pennsylvania

June 14, 2018

SENECA INSURANCE CO. a/s/o WILD BLUE MANAGEMENT LP, Plaintiff,
v.
MARK BEAL d/b/a MARK'S MAINTENANCE AND REPAIR, Defendant and Third-Party Plaintiff,
v.
LARRY D. JEFFRIES d/b/a L&D CONTRACTING and GENE NEWHAMS d/b/a/ G.N. ELECTRICAL, Third-Party Defendants.

          MEMORANDUM AND ORDER

          ROBERT C. MITCHELL, UNITED STATES MAGISTRATE JUDGE.

         On March 28, 2018, following a trial, the jury returned a verdict in the above-captioned case in favor of the Defendant, Mark Beal d/b/a Mark's Maintenance and Repair (Beal), and against the Plaintiff, Seneca Insurance Co. ao Wild Blue Management LP (Seneca) on Seneca's claim against Beal for negligence arising out of a fire on December 17, 2012 that caused significant damage to the Natrona Heights Shopping Plaza. Although the jury concluded that Beal had been negligent when he removed a neon sign from the façade of a store front at the plaza, it also concluded that Seneca had not demonstrated that Beal's actions or omissions were the factual cause of the fire. Therefore, the jury did not reach the question of the percentage of the negligence that was the factual cause of the fire that should be attributed to Beal.

         Presently pending before the Court is Plaintiff's motion for a new trial or in the alternative for judgment notwithstanding the verdict. Defendant has filed a brief in opposition to the motion, Plaintiff has filed a reply brief and Defendant has filed a sur-reply brief. For the reasons that follow, the motion will be denied.

         Factual Background

         On October 6, 2012, Beal was contacted by Chris Sokol, a contractor, to remove a neon sign from the canopy of a vacant storefront at the Natrona Heights Shopping Plasa because a new tenant would be moving in. At that time, the electricity to that store had been turned off for two years. Beal climbed up a ladder and disconnected the letters of the sign from the wires that were connected to it. The evidence was disputed as to whether he capped or taped the wires: he claimed that he had but the photographs suggested otherwise, and the experts disagreed about the matter. It was undisputed that Beal pushed the wires back into the canopy, that he did not disconnect or tape the circuit breaker, that he did not fill the holes, that he did not disconnect or remove the wiring and that he did not disconnect or remove the transformers in the canopy which would step up the current from 120 volts to between 9, 000 and 15, 000 volts.

         Two months later, Gene Newhams, the general contractor in charge of the project, had the electricity restored to the storefront, which was about to be occupied by a new tenant called the Lung and Wellness Center. On December 17, 2012, Larry Jeffries and his brother William were painting the interior of the store and evidence was presented that Larry Jeffries may have accidentally switched on circuit breaker #34-which controlled the power to the neon sign in the canopy-while attempting to turn on the lights in the store. Around 9:30 p.m. that evening, a patron of J&S Pizza (the store next to the vacant one) was standing in the parking lot when she saw sparks of fire through the holes in the canopy where the sign had been. The fire quickly spread through the canopy of the storefronts. Luckily, no one was injured, but the plaza sustained significant damages that the parties stipulated to costing $11.5 million. An investigation conducted thereafter concluded that the fire had originated in the canopy above the Lung and Wellness Center and that Beal's removal of the neon sign had left wiring that, when energized, sparked and caused the fire. Seneca paid Wild Blue Management for its losses and became subrogated to Wild Blue's negligence claim against Beal. Although Beal filed third-party claims against Newhams, Sokol and Jeffries, he later withdrew the claim against Sokol and the parties essentially agreed that Newhams and Jeffries would not present any defense at the trial (they were called as witnesses, but their lawyers did not attend the trial).

         At the trial, Plaintiff presented three experts: Dennis Brew (who specializes in installing and removing neon signs), Gerald Kufta (a licensed private investigator specializing in fires) and Samuel Sero (a forensic engineer). Defendant presented only one expert witness: Ralph Dolence, a fire investigator and licensed master electrician. The trial began on Monday, March 19, 2018 and the final witnesses testified on Tuesday, March 27, 2018.

         On March 28, 2018, the jury heard closing arguments and the Court's instructions, then retired to deliberate. Approximately one hour later, the jury returned with two questions: 1) “What is the definition of ‘Factual Cause'?”; and 2) “Why are Larry Jeffries (L&D) & Gene Newhams listed as Third Party Defendants?” (ECF No. 201.) After consulting with the attorneys, the Court responded to the first question by reading back the Standard Jury Instruction. One of the jurors started to make a comment to the effect that “we were hoping for something more.” The Court directed the jury to return to its deliberations.

         Sometime later, the jury returned with a verdict. The first question on the verdict slip asked: “Was the defendant, Mark Beal doing business as Mark's Maintenance and Repair, negligent?” The jury responded “yes.” The second question asked: “was the negligence of Mark Beal doing business as Mark's Maintenance and Repair a factual cause of any harm to the plaintiff?” In response to this question, the jury answered “no.” (ECF No. 202.) Therefore, the jury did not reach question 3, which inquired as to what percentage of the negligence that was a factual cause of any harm to the plaintiff the jury attributed to Mark Beal. The jury was polled and all members agreed that this was their verdict. No. motions were made. The Court thanked the jury members for their service and they were excused.

         Procedural History

         On April 25, 2018, Plaintiff filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial (ECF No. 204). On May 17, 2018, Defendant filed a brief in opposition (ECF No. 209). On June 1, 2018, Plaintiff filed a reply brief (ECF No. 215). On June 7, 2018, Defendant filed a motion for leave to file a sur-reply brief (ECF No. 216) and after this motion was granted (ECF No. 217), Defendant filed a sur-reply brief on June 11, 2018 (ECF No. 218).

         Standard of Review

         Rule 50 of the Federal Rules of Civil Procedure provides that after entry of a judgment by the jury, the Court may allow the judgment to stand, order a new trial or direct entry of judgment as a matter of law in favor of the aggrieved party. A court may order a new trial on all or part of the issues in the case “for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States” under Fed.R.Civ.P. Rule 59. A court also may overturn a jury verdict when “as a matter of law, the record is critically deficient of that minimum quantity of evidence from which a jury might reasonably afford relief.” Raiczyk v. Ocean County Veterinary Hospital, 377 F.3d 266, 268 (3d Cir. 2004) (citing Dudley v. S. Jersey Metal, Inc., 555 F.2d 96, 101 (3d Cir. 1977)).

         Rule 59 provides that a court may grant a new trial upon motion “for any reason for which a rehearing has heretofore been granted in an action at law in federal court.” Fed.R.Civ.P. 59(a)(1)(A). The Rule does not specify the basis on which a court may grant a new trial, but rather leaves that decision to the discretion of the district court. See Blancha v. Raymark Indus., 972 F.2d 507, 512 (3d Cir. 1992).

         Plaintiff argues that: 1) the testimony of Ralph Dolence was unhelpful to the jury, improper and prejudicial to Seneca; 2) Dolence testified at length about photographs not included in his report, and which he failed or refused to identify with sufficient specificity to allow the validity of his opinion to be probed in discovery or at trial; 3) Beal's counsel made several statements during trial and in her closing argument that tainted the proceeding and the jury's deliberation and likely led to jury confusion; and 4) the jury's questions and statements made by jurors clearly indicated that the jury was confused as to the proper legal standard for causation, which was not alleviated and which was reflected in the verdict.

         Defendant responds that: 1) Plaintiff did not move for a directed verdict at the close of the evidence and therefore it cannot request judgment notwithstanding the verdict; 2) Beal challenged Seneca's contention that he was responsible for the fire both by contesting that the neon sign circuit of the Lung and Wellness Center ignited the fire and by pointing to the negligence of Gene Newhams (for energizing the circuit breaker that controlled the neon sign) and Larry Jeffries (for turning on the circuit breaker) as being the factual cause of the fire even assuming that it did originate in the neon sign circuit; 3) Plaintiff's failure to move for a directed verdict also precludes it from seeking a new trial based on the sufficiency of the evidence; 4) Plaintiff only preserved objections about Dolence's testimony regarding photographs that were not in his report and the legal standard for fire investigation (all other challenges are waived because they were not raised at trial) and these objections fail because Dolence was referring to photographs taken by the fire marshal that were referenced in his report and Dolence merely testified about the guidelines established by the National Fire Protection Association; 5) Plaintiff waived any objections to Defendant's closing argument because it failed to object at the time; 6) Plaintiff waived any objections to the manner in which the Court handled the jury questions because it agreed to this procedure and in any event the jury instruction was taken directly from Pennsylvania's Suggested Standard Civil Jury Instructions; and 7) the jury's verdict was not inconsistent because it indicated that, although Beal may have acted negligently, the fire was not caused by his negligence, but by that of Newhams, Jeffries or some other undetermined source.

         In a reply brief, Plaintiff argues that: 1) the issues raised were properly preserved for appeal and are properly before the Court; 2) Dolence's testimony created confusion that warrants judgment notwithstanding the verdict or a new trial; and 3) defense counsel's improper statements in her closing argument cannot be excused as harmless error.

         In a sur-reply brief, Defendant contends that: 1) Plaintiff cites no authority in support of its argument that it has not waived its ability to seek judgment notwithstanding the verdict, and Rule 50(b) explicitly requires a motion to be made before the close of the presentation of the evidence; 2) Plaintiff has not responded to Beal's argument that he had challenged Plaintiff's contention that he was responsible for the fire in two distinct ways and thus the jury's verdict was supported by the evidence in the record; 3) Plaintiff's motion in limine did not preserve its contentions that Dolence made misrepresentations during the course of his testimony or that his opinions were based on his subjective beliefs; 4) the record reflects that Plaintiff acquiesced in the Court's proposal for how to handle the jury question on factual cause; 5) Dolence did not testify about Plaintiff's burden of proof but rather what he believes should be done in a fire investigation, and the jury's finding that Beal's negligence was not the factual cause of the fire is not a sign of confusion but rather its understanding of Dolence's testimony questioning whether the neon sign circuit caused the fire, and Dolence's report referenced the fire marshal's photographs; 6) as with Plaintiff's objections to Defendant's closing argument made in its initial brief, the new arguments made in the reply brief (that Plaintiff had to rule out all possible causes of the fire, that oral statements were not the best evidence of the scope of Beal's work and that Plaintiff had probably gotten money from the ...


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