Phenix Mutual Fire Insurance Company v. Stanley Convergent Security Solutions, Inc.

Filing 30

///ORDER granting in part and denying in part as outlined 23 Motion for Summary Judgment. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Phenix Mutual Fire
Insurance Company
v.

Civil No. 12-cv-273-JD

Stanley Convergent Security
Solutions, Inc.
O R D E R
Phenix Mutual Fire Insurance Company brought an action
against Stanley Convergent Security Solutions, Inc., seeking to
recover the amount Phenix paid to James and Jennifer Barall for
water damage to their vacation home in Peterborough, New
Hampshire.

Stanley moves for summary judgment.

Phenix objects.1

Standard of Review
Summary judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

“A genuine issue is one that can be resolved in favor

of either party and a material fact is one which has the

1

The court previously granted Stanley’s motion to strike the
rebuttal expert opinion of Karlton Klardie as offered by Phenix
in support of its objection to summary judgment. Therefore,
Klardie’s opinion is not considered for purposes of the present
motion for summary judgment.

potential of affecting the outcome of the case.”

Jakobeic v.

Merrill Lynch Life Ins. Co., 711 F.3d 217, 223 (1st Cir. 2013)
(internal quotation marks omitted).

In deciding a motion for

summary judgment, the court draws all reasonable factual
inferences in favor of the nonmovant.

Kenney v. Floyd, 700 F.3d

604, 608 (1st Cir. 2012).

Background
James and Jennifer Barall own a vacation house in
Peterborough, New Hampshire.

On December 18, 2007, James Barall

hired HSM Electronic Protection, Services, Inc., to install a
monitoring system for remote monitoring of motion, smoke, and
heat in the house.2

The installation was done pursuant to the

Residential Agreement in early 2008.

Phenix provided insurance

for the vacation house.
In response to calls from the Baralls, Stanley provided
service for parts of the system during 2008 and 2009.

In July of

2009, James Barall hired Stanley to relocate the temperature
sensor for the system.

Stanley technician, William Paris, was

sent to perform the service on July 14, 2009.

James Barall

remembers that he showed the temperature sensor to Paris, told

2

Stanley represents that HSM is its predecessor in interest.
The court will refer to Stanley rather than HSM.
2

Paris that he wanted it moved because he was concerned that it
might not work in its location, and showed Paris where he wanted
it to be reinstalled.

Barall believes that he made it clear to

Paris that he expected the sensor to operate as a low temperature
sensor.
Paris disconnected the sensor by snipping the connecting
wires which caused a signal to be sent to the monitoring station.
He then moved the sensor to the new location and reconnected the
wires, attaching the same colored wires.

On February 8, 2011,

the temperature in the house dropped below freezing, but the
sensor did not send a signal to the monitoring station.

As a

result, pipes in the home froze and then burst, causing damage to
the house and the property inside.
As part of the current case, representatives for the parties
conducted a joint inspection of the temperature sensor and
concluded that it was properly wired.

The settings on the

sensor, however, were not set to send an alarm for a low
temperature.

Therefore, the sensor did not send a signal for the

low temperature condition on February 8, 2011, because it was not
set to do so.

3

Discussion
Phenix, as the subrogee of the Baralls, brings claims
against Stanley for negligence, breach of contract, and breach of
the implied warranty to provide services in a good and
workmanlike manner.

Stanley moves for summary judgment on the

ground that because the sensor was properly wired, it did not
breach a duty owed to the Baralls.

In response, Phenix does not

dispute that the sensor was properly wired but argues that
Stanley owed other duties to the Baralls when it relocated the
temperature sensor.
In support of its negligence claim, Phenix alleges that
Stanley was negligent in failing to properly wire the sensor, in
failing to properly install the equipment in accord with the
manufacturer’s instructions and recommendations, in failing to
properly inspect and test the sensor when it was installed, and
in otherwise failing to use due care.

Phenix also alleges that

Stanley breached its contract to properly install the sensor and
breached its implied warranty to perform the service on the
sensor in a workmanlike manner.

Phenix objects to summary

judgment on the grounds that Stanley owed duties beyond the
requirement that the sensor be properly wired.
Stanley charges that Phenix is raising a new theory in
opposition to summary judgment based on an industry standard for
4

service technicians.

In its reply, Stanley contends that even if

Phenix could proceed on its new theory, it lacks admissible
evidence to support the theory.
Based on the allegations in the complaint, Phenix’s
objection is premised on the claims made there, not on a new
theory.

For purposes of summary judgment, Stanley addressed only

the improper wiring basis for Phenix’s negligence claim.
Although Stanley raises arguments against Phenix’s other claims
in its reply, those arguments cannot be considered for purposes
of its motion.

See, e.g., Moffat v. U.S. Dep’t of Justice, 716

F.3d 244, 255 (1st Cir. 2013); Zibolis-Sekella v. Ruehrwein, 2013
WL 3208573, at *1, n.1 (D.N.H. June 24, 2013); Bougopoulos v.
Altria Grp., Inc., --- F. Supp. 2d ---, 2013 WL 3105100, at *9,
n.8 (D.N.H. June 18, 2013); Angela Adams Licensing, LLC v. WalMart Stores, Inc., 2012 WL 7007575, at *12, n.10 (D. Me. Dec. 28,
2012).
Therefore, Stanley is entitled to summary judgment on Part A
of Phenix’s negligence claim and on the remainder of the
negligence claims, the breach of contract claim, and breach of
implied warranty claim to the extent those claims are based on a
theory of improper wiring.

5

Conclusion
For the foregoing reasons, the defendant’s motion for
summary judgment (document no. 23) is granted in part and denied
in part as is explained in this order.
Summary judgment is entered in favor of Stanley on Count I,
Negligence, paragraph 21(a).3

Stanley is also entitled to

summary judgment on any part of the remaining claims that are
based on a theory that the temperature sensor was improperly
wired when it was relocated and reinstalled.

Summary judgment is

denied as to other claims or theories, which are not based on a
theory that the temperature sensor was improperly wired when it
was relocated and reinstalled, that Phenix alleges in the
complaint.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 30, 2013
cc:

Gerard A. Butler, Jr., Esquire
Christopher A. Duggan, Esquire
Dustin M. Lee, Esquire
Joseph Gardner Mattson, Esquire
Lawrence F. Walker, Esquire

3

There are two paragraph 21s in the complaint. The second
paragraph 21 is the applicable part of the negligence claim.
6