Factory Mutual Ins Co v. Pike Co Inc

Filing 131

Ruling and ORDER denying 89 Motion in Limine; denying 90 Motion for Summary Judgment; denying 90 Motion for Summary Judgment; granting 124 Motion for Summary Judgment; denying 127 Motion to Preclude. Signed by Judge Mark R. Kravitz on 4/18/2011. (Falcone, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

FACTORY MUTUAL INSURANCE
CO.,
Plaintiff,
v.
PIKE CO., INC.,
Defendant and Third-Party
Plaintiff,
v.
YANKEE HERITAGE, INC.; SOUTH
CENTRAL CONNECTICUT
REGIONAL WATER AUTHORITY,
Third-Party Defendants.
SOUTH CENTRAL CONNECTICUT
REGIONAL WATER AUTHORITY,
Cross-Claimant
v.
YANKEE HERITAGE, INC.,
Cross-Defendant.

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No. 3:08cv1775 (MRK)

RULING AND ORDER

This case concerns a water main break that flooded the Buley Library on the campus of
Southern Connecticut State University in New Haven, Connecticut on November 21, 2006.
Along with a companion case, Pike Co. v. South Central Connecticut Regional Water Authority,

No. 08cv1751 (MRK) (D. Conn. filed Nov. 19, 2008), the case involves four parties1 who have
brought virtually every conceivable combination of direct claims, counterclaims, cross-claims,
and third-party claims against one another. The Court wishes to express its sincere appreciation
for the diligent efforts of counsel in their case management, in their briefs, during telephonic
conferences, and at oral argument to help the Court keep track of the various parties, claims, and
issues in this case and the companion case.
This Ruling and Order resolves four of the six pending motions in this case:2 Pike Co.,
Inc.'s ("Pike's") Motion to Exclude the Report and Testimony of Gregory Twomey [doc. # 89]
pursuant to Rule 702 of the Federal Rules of Evidence; the South Central Connecticut Regional
Water Authority's ("the Water Authority's") Motion for Summary Judgment [doc. # 90] pursuant
to Rule 56 of the Federal Rules of Civil Procedure; Yankee Heritage, Inc.'s ("Yankee
Heritage's") Motion for Summary Judgment [doc. # 124]; and Yankee Heritage's Motion to
Exclude the Report and Testimony of Gregory Twomey [doc. # 127]. For the reasons set forth
below, the Court DENIES without prejudice Pike's Motion to Exclude the Report and Testimony
of Gregory Twomey [doc. # 89]; DENIES the Water Authority's Motion for Summary Judgment
[doc. # 90]; GRANTS Yankee Heritage's Motion for Summary Judgment [doc. # 124]; and
DENIES without prejudice Yankee Heritage's Motion to Exclude the Report and Testimony of
Gregory Twomey [doc. # 127].

1

All claims brought by or against a fifth party, Ferguson Mechanical Co., Inc. ("Ferguson
Mechanical"), have now been settled. Thus, Ferguson Mechanical has already been dismissed
from the case. See Order [doc. # 107].
2
The Court previously denied both Ferguson Mechanical's Motion for Summary Judgment
[doc. # 86] and Ferguson Mechanical's Amended Motion for Summary Judgment [doc. # 98] as
moot. See Order [doc. # 108]. Pike's Motion to Preclude the Report and Testimony of Kevin
Flood [doc. # 87] and Pike's Motion to Preclude the Report and Testimony of John C. Parrienello
[doc. # 88] will remain pending after this Ruling and Order.

2

I.
Pike and Yankee Heritage suggested to the Court before the oral argument held on March
2, 2011 that their motions to exclude Mr. Twomey's testimony were dispositive motions aimed at
excluding an expert witness whose testimony would be necessary for Factory Mutual Insurance
Co. ("Factory Mutual") to prevail on its subrogation claims against Pike, and in turn, for Pike
and the Water Authority to be able to prevail on their common law indemnification claims
against Yankee Heritage. The Court does not agree with that suggestion.
Factory Mutual did not disclose Mr. Twomey as an expert witness; did not submit an
expert report by Mr. Twomey; and represented at oral argument that it will not seek to have Mr.
Twomey qualified as an expert pursuant to Rule 702 of the Federal Rules of Evidence and the
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), line of cases. Instead, Mr.
Twomey is a fact witness who will testify about his personal role as the insurance adjuster at
Factory Mutual who analyzed the extent of the damages caused by the flood at issue in this case.
In addition, the two motions cannot properly be characterized as dispositive motions because
even assuming that Mr. Twomey is the witness who will testify as to the damages Factory
Mutual suffered as a result of the flood, Pike and Yankee Heritage only object to a few portions
of Mr. Twomey's anticipated testimony. Thus, even if the Court were to grant both motions, Mr.
Twomey would still be able to testify and Factory Mutual could still be able to prevail on its
subrogation claims against Pike – though Factory Mutual might not be able to prove the full
amount of the damages it hopes to recover.
The Court will not exclude Mr. Twomey from this trial. While Pike raises a host of
creative arguments about why the Court should exclude various portions of Mr. Twomey's
anticipated testimony, it does not cite a single case that supports its sweeping argument that

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under the Federal Rules of Evidence, an insurance adjuster for a plaintiff insurance company
bringing a subrogation claim cannot testify about his adjustment of the claim at issue in the case.
The Court knows of no reason why such testimony would be per se inadmissible under the
Federal Rules of Evidence. See St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc.,
246 F.R.D. 56, 58 (D.D.C. 2007) (permitting an insurance adjustor's testimony in subrogation
action). Cf. Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256 (2d Cir. 1995) (permitting a
company president to testify as to his lay opinion regarding the damages his company suffered).
That said, there may well be specific aspects of Mr. Twomey's anticipated testimony – or
of documents written by Mr. Twomey that Factual Mutual intends to submit into evidence – that
are inadmissible for one reason or another. See, e.g., Fed. R. Evid. 402 (irrelevance); Fed. R.
Evid. 602 (lack of personal knowledge); Fed. R. Evid. 802 (hearsay). For example, if Mr.
Twomey intends to merely repeat to a jury what various experts retained by Factory Mutual told
him about the value of the art and library books that were damaged in the flood, such testimony
may very well be inadmissible. Cf. Master-Halco, Inc. v. Scillia, Dowling & Natarelli, LLC, No.
3:09cv1546, 2010 WL 1553784, at *2 (D. Conn. Apr. 19, 2010) (recognizing that even an expert
witness may not be used to relay otherwise inadmissible hearsay evidence in the guise of the
expert's opinion). The Court therefore DENIES Pike's Motion to Exclude the Report and
Testimony of Gregory Twomey [doc. # 89] and Yankee Heritage's Motion to Exclude the Report
and Testimony of Gregory Twomey [doc. # 127], but without prejudice to Pike's and Yankee
Heritage's ability to raise specific objections at trial.
II.
Because this case is currently before the Court at the summary judgment stage, the Court
sets forth the facts in the light most favorable to the nonmoving parties. See, e.g., DeFabio v. E.

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Hampton Union Free Sch. Dist., 623 F.3d 71, 74 (2d Cir. 2010) (per curiam). Here, the Water
Authority has moved for summary judgment on Pike's common law indemnification claim
against it, and Yankee Heritage has moved for summary judgment on the Water Authority's
common law indemnification claim against it. Thus, as to the Water Authority's motion, the
Court must set forth the facts in the light most favorable to Pike, and as to Yankee Heritage's
motion, the Court must set forth the facts in the light most favorable to the Water Authority.
Unless the Court notes otherwise, the facts set forth here are undisputed.
On February 21, 2005, Pike entered into a contract with the Connecticut Department of
Public Works ("the Public Works Department") to renovate and build an addition to the Buley
Library on the campus of Southern Connecticut State University. Pike, in turn, subcontracted
some of its work on the library project to Yankee Heritage and to Ferguson Mechanical Co., Inc.
("Ferguson Mechanical"). Yankee Heritage was responsible for excavation, and Ferguson
Mechanical was responsible for utility drilling. Bob Ross of Pike, the Project Superintendent,
oversaw the library project on the ground. The Public Works Department also hired another
company, Fusco Corp. ("Fusco"), to serve as its Construction Administrator. Dave Long of
Fusco was the Project Manager assigned to the library project.
At roughly the same time that Pike, Yankee Heritage, and Ferguson Mechanical agreed to
work on the library project, the Water Authority entered into a separate contract with the Public
Works Department to design and install a new water main for the Buley Library. A new water
main was needed because the old water main was buried in the area where the library addition
was going to be built. In June of 2005, Mr. Ross of Pike, accompanied by representatives from
the Water Authority, walked the library project area and staked out the location where the new
water main should be located. The Water Authority then proceeded to install a new water main

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and finished installing it in June 2005. The Water Authority apparently did not keep written
records about the plan for the new water main, and the Water Authority installed it without any
knowledge regarding whether other underground utilities would be installed in the same area as
the new water main. In addition, the Water Authority apparently did not keep written records
about any tests that it performed on the new water main subsequent to installing it.
Meanwhile, construction on the library project continued after the Water Authority
installed the new water main. On November 16, 2006, Yankee Heritage began to excavate a
trench parallel to the new water main, which was intended for a new high-temperature water line.
In the process of digging the trench, Yankee Heritage partially exposed the new water main. On
November 21, 2006, the new water main released, flooding the parallel trench and sending
millions of gallons of water into the library's basement. As a result, the library was significantly
damaged, and Pike was unable to resume its work on the library project until March 3, 2007.
Factory Mutual, which insured the State of Connecticut against property damage, eventually paid
the State of Connecticut $6,034,463.35 for damages caused by the flood.
On November 19, 2008, Pike filed a complaint in this Court against the Water Authority,
asserting a single claim of negligence and alleging that the flood resulted from the Water
Authority's failure to install the new water main in accordance with the standards of care and
workmanship set forth in the National Fire Protection Agency ("NFPA") Code, failure to utilize
any restraints in building the new water main, and failure to properly test the new water main
after installing it. See Complaint, Pike Co. v. South Central Connecticut Regional Water
Authority, No. 08cv1751 (MRK) (D. Conn. Nov. 19, 2008), ECF No. 1. On November 21, 2008,
Factory Mutual filed its Complaint [doc. # 1] in this case against Pike. Factual Mutual asserted
subrogation claims against Pike for breach of contract and negligence, alleging that the flood

6

resulted from Pike's or Pike's subcontractors' failures to take proper precautions while engaged in
construction work around the new water main. See Compl. [doc. # 1].
The procedural history of this case since the filing of the two complaints is complicated,
to say the least. Rather than reciting that complicated history in full, the Court instead lists the
claims that remain pending in the two cases. In the companion case, Pike Co. v. South Central
Connecticut Regional Water Authority, No. 08cv1751 (MRK) (D. Conn. filed Nov. 19, 2008),
Pike asserts a negligence claim against the Water Authority and a breach of contract claim
against Yankee Heritage; and the Water Authority asserts a contribution claim and a common
law indemnification claim against Yankee Heritage. In this case, Factory Mutual asserts
subrogation claims against Pike for breach of contract and negligence, see Factory Mutual's Am.
Compl. [doc. # 52]; Pike asserts common law indemnification claims against Yankee Heritage
and the Water Authority, see Pike's Third-Party Compl. [doc. # 17], and a counterclaim against
Factory Mutual, see Pike's Answer and Countercl. [doc. # 53];3 and the Water Authority asserts a
common law indemnification claim against Yankee Heritage, see Cross-cl. [doc. # 24].
On September 30, 2010, the Water Authority moved for summary judgment on Pike's
common law indemnification claim against it in this case. See Water Authority's Mot. for
Summary J. [doc. # 90]. Also on September 30, 2010, Yankee Heritage filed a motion in the
companion case seeking summary judgment on the Water Authority's common law
indemnification claims against it in both cases. See Yankee Heritage's Motion for Summary
Judgment, Pike Co. v. South Central Connecticut Regional Water Authority, No. 08cv1751
(MRK) (D. Conn. Sept. 30, 2010), ECF No. 100. However, Yankee Heritage initially overlooked
3

Although the legal basis for Pike's counterclaim against Factory Mutual is not entirely clear to
the Court, Factory Mutual has not yet contested that counterclaim and the Court need not address
it in this Ruling and Order.

7

the need to file its motion in this case as well. After the Court informed Yankee Heritage of its
error, see Order [doc. # 123], Yankee Heritage filed a copy of the same motion in this case on
March 16, 2011. See Yankee Heritage's Mot. for Summary J. [doc. # 124].
The Court held oral argument on the various motions pending in this case and the
companion case on March 3, 2011. At the oral argument, the Court asked the parties to submit
supplemental briefing on one issue relevant to Yankee Heritage's Motion for Summary Judgment
in this case.4 The Court asked the parties to brief whether, assuming that a jury was to find the
Water Authority liable to Pike on its common law indemnification claim – the only claim Pike
asserts against the Water Authority in this case – it could also find Yankee Heritage liable to the
Water Authority for common law indemnification. The Court is especially grateful to counsel for
the Water Authority and Yankee Heritage for submitting helpful supplemental briefs on that
issue.
III.
This Court must apply a familiar standard when resolving a motion for summary
judgment. Summary judgment is appropriate only when the "depositions, documents,
electronically stored information, affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory answers, or other materials"
submitted to the Court "show[] that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(1)(A); Fed. R. Civ. P.
56(a). "As to materiality, the substantive law governing the case will identify those facts that are
material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Summary judgment must

4

The Court also asked for briefing on another issue that, while relevant to a motion pending in
the companion case, has no impact on any of the pending motions in this case.

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be rejected "if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party." Williams v. Utica Coll. of Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006)
(quotation marks omitted). However, the party against whom summary judgment is sought
cannot prevail by "simply show[ing] that there is some metaphysical doubt as to the material
facts," and instead "must come forward with specific facts showing that there is a genuine issue
for trial." Matshushita v. Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 & n.11
(1986) (quotation marks and citations omitted).
IV.
A.
The Court begins with the Water Authority's Motion for Summary Judgment. The Water
Authority seeks summary judgment on Pike's common law indemnification claim, the only claim
pending against it in this case. Under Connecticut Law, a claim for common law indemnity is "a
claim for reimbursement in full from one on whom a primary liability is claimed to rest . . . ."
Crotta v. Home Depot, Inc., 249 Conn. 634, 641-42 (1999) (citation omitted). The doctrine of
common law indemnity distinguishes between active or primary negligence and passive or
secondary negligence, shifting the impact of liability from a passive or secondary joint tortfeasor
to the active of primary joint tortfeasor. See id. (citation omitted). Thus, Pike seeks to pass the
full extent of its liability on to the Water Authority in the event that a jury eventually finds Pike
liable to Factory Mutual on its subrogation claims. See, e.g., Finance California, Inc. v. Lawyers
Title Insurance Corp., No. 3:07cv804 (MRK), 2010 WL 2982986, at *4 (D. Conn. June 22,
2010) (denying summary judgment on a common law indemnification claim).
Under Connecticut law, a party asserting a common law indemnification claim against a
joint tortfeasor must prove four elements in order to prevail on that claim. See Skuzinski v.

9

Bouchard Fuels, Inc., 240 Conn. 694, 698 (1997). First, the party asserting the claim must show
that the joint tortfeasor was negligent. See id. Second, the party asserting the claim must show
that the joint tortfeasor's negligence, rather than its own negligence, was the direct, immediate
cause of the accident and injuries at issue. See id. Third, the party asserting the claim must show
that the joint tortfeasor had exclusive control over the dangerous situation giving rise to the
accident and injuries, to the exclusion of the party asserting the claim. See id. at 698, 706.
Fourth, the party asserting the claim must show that it did not know of the joint tortfeasor's
negligence; had no reason to anticipate the joint tortfeasor's negligence; and could reasonably
rely on the joint tortfeasor not to be negligent. See id. at 698.
The Water Authority does not contest that the evidence in the summary judgment record
would permit a reasonable jury to find that Pike satisfied the first, second, or fourth elements of
its common law indemnification claim. The Water Authority's only argument in support of
summary judgment is that, based on the summary judgment record, no reasonable jury could find
that the Water Authority had exclusive control over the dangerous situation at issue in this case.
See Water Authority's Mem. in Supp. of Mot. Summary J. [doc. # 90-1] at 7-12. The Water
Authority relies on just one Connecticut Supreme Court case, Skuzinksi v. Bouchard Fuels, Inc.,
240 Conn. at 694, for the proposition that under the circumstances of this case, the Court can
decide the exclusive control issue as a matter of law instead of submitting it to a jury.
In Skuzinski, the plaintiff walked out of a liquor store where he had just purchased liquor,
entered the street, and was immediate hit by a truck. See id. at 696. When the plaintiff sued the
truck driver for negligence, the truck driver in turn asserted a common law indemnification claim
against the liquor store owner. See id. The truck driver alleged that the store owner had exclusive
control over the dangerous situation that gave rise to the accident in that the store owner had

10

failed to clear snow from the sidewalk in front of the store. See id. As a result, the truck driver
argued, the plaintiff had no choice but to walk in the street rather than on the sidewalk. See id.
The trial court granted the store owner's motion to strike the truck driver's common law
indemnification claim. See id. at 698. The Connecticut Supreme Court affirmed on the ground
that based on the facts that the truck driver alleged in support of his common law indemnification
claim, no reasonable jury could have concluded that the store owner had exclusive control of the
dangerous situation that gave rise to the accident. See id. at 705. The Connecticut Supreme Court
reasoned that "[i]n this case, the question of exclusive control is one of the rare examples in
which the issue may properly be decided as a matter of law," because it was readily apparent that
the dangerous situation did not solely consist of the uncleared sidewalk. Id. (emphasis added).
The Court believes that the Water Authority's reliance on Skuzinski is misplaced. This
case does not present one of those "rare examples" of a situation that, as a matter of law, cannot
be said to be in the exclusive control of any one party. Connecticut courts decline to decide the
exclusive control issue as a matter of law when there is a genuine factual dispute about what the
dangerous situation that gave rise to a particular injury was. See, e.g., Viadella v. Yankee
Remodeler of New London, Inc., No. CV085008382, 2010 WL 1544626, at *3 (Conn. Super.
Mar. 19, 2010) ("Because the court currently cannot define 'the dangerous situation' that gave
rise to the plaintiff's slip and fall, it also cannot determine whether any reasonable juror would
find that the third party defendant had exclusive control of the situation at issue. Exclusive
control in the present case is therefore a question of fact . . . ."). There is evidence in the record
that supports Pike's allegation that the Water Authority designed and installed the water main
without first seeking input from any other entity about the construction plans. See Corradino
Dep. [doc. # 104-2] at 78. There is also evidence in the record – in particular, the testimony of

11

Pike's expert witness Tom Simbro – that supports Pike's allegation that the Water Authority
installed the water main without industry-standard restraints that should have prevent the
exposed water main from opening. See Simbro Dep. [doc. # 104-3] at 70-73. Based on that
evidence, a jury might reasonably conclude – but just as well might not conclude – that the faulty
water main was the dangerous situation that gave rise to the flood. If a jury were to reach that
reasonable conclusion, it could also presumably conclude that the Water Authority exclusively
created and controlled that dangerous situation. The Court therefore DENIES the Water
Authority's Motion for Summary Judgment.
B.
The Court now turns to Yankee Heritage's Motion for Summary Judgment. Yankee
Heritage seeks summary judgment on the common law indemnification claim asserted against it
by the Water Authority. As discussed above, a common law indemnification claim permits a
party to pass the full extent of its liability on to a joint tortfeasor under certain limited
circumstances. See Crotta, 249 Conn. at 641-42. Thus, the Water Authority seeks to pass the full
extent of its liability on to Yankee Heritage in the event that a jury eventually finds the Water
Authority liable to Pike. See, e.g., Finance California, 2010 WL 2982986, at *4.
As the Court discussed with the parties at oral argument and emphasized by asking the
parties to submit supplemental briefing after the oral argument, the problem with the Water
Authority's common law indemnification claim is not a lack of evidence in the record. Instead,
the problem lies in the fact that the Water Authority seeks to obtain indemnification from
Yankee Heritage.
The only claim on which the Water Authority could potentially be found liable in this
case is a Pike’s common law indemnification claim. Thus, the Water Authority will not have any

12

liability to pass on unless a jury finds that the Water Authority was negligent; that the Water
Authority's was the direct, immediate cause of the accident and injuries at issue; that the Water
Authority had exclusive control over the dangerous situation giving rise to the accident and
injuries at issue; and that the Water Authority's negligence was unforeseeable. See id. Assuming
that a jury were to find that the Water Authority was the direct, immediate cause of the flood –
and furthermore, that the Water Authority had exclusive control over the situation that gave rise
to the flood – it would be not only unreasonable, but utterly irrational for the same jury to go on
to find that Yankee Heritage was the direct, immediate cause of the flood and that the Yankee
Heritage had exclusive control over the situation that gave rise to the flood. The very factual
findings that would make the Water Authority liable to Pike would be logically incompatible
with the factual findings that would be necessary for the Water Authority to prevail on its claim
against Yankee Heritage.
The Court therefore GRANTS Yankee Heritage's Motion for Summary Judgment
[doc. # 124]. In the event that a jury eventually finds the Water Authority liable to Pike on its
common law indemnification claim, the Water Authority will not be able to pass that liability on
to Yankee Heritage. That said, Water Authority has good arguments for why it should not be
liable to Pike, and if the jury accepts those argument, there will be no liability for the Water
Authority to pass on.
V.
In sum, the Court concludes that Mr. Twomey's testimony is not per se inadmissible; that
there is a genuine issue of material fact regarding whether the Water Authority was in exclusive
control of the situation that gave rise to the flood at issue in this case; but that no reasonable jury
could find Yankee Heritage liable to the Water Authority for common law indemnification. The

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Court DENIES without prejudice Pike's Motion to Exclude the Report and Testimony of
Gregory Twomey [doc. # 89]; DENIES the Water Authority's Motion for Summary Judgment
[doc. # 90]; GRANTS Yankee Heritage's Motion for Summary Judgment [doc. # 124]; and
DENIES without prejudice Yankee Heritage's Motion to Exclude the Report and Testimony of
Gregory Twomey [doc. # 127].
As a result of this Ruling and Order, the only claims that remain pending in this case are
Factory Mutual's subrogation claims against Pike for breach of contract and negligence; Pike's
counterclaim against Factory Mutual; Pike's common law indemnification claim against Yankee
Heritage; and Pike's common law indemnification claim against the Water Authority. The Court
will shortly issue a separate order consolidating this case and the companion case for trial.

IT IS SO ORDERED.

/s/

Mark R. Kravitz
United States District Judge

Dated at New Haven, Connecticut: April 18, 2011.

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