Nationwide Agribusiness Insurance Company v. David Martin Construction Company et al

Filing 118

DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CUSTOM HEATING & AIR CONDITIONING, INC. (DOC. # 50 ); SUSTAINING MOTION OF THIRD-PARTY DEFENDANT GEORGE ROBERT CHARLES, DBA CHARLES PLUMBING TO STRIKE PARAGRAPH 7 OF THE AFFIDAVIT OF DAVID MARTIN AND OVERRULING MOTION TO STRIKE REMAINDER OF AFFIDAVIT; AND OVERRULING MOTION FOR SUMMARY JUDGMENT OF THIRD-PARTY DEFENDANT GEORGE ROBERT CHARLES, DBA CHARLES PLUMBING (DOC. # 63 ). Signed by Judge Walter H. Rice on 10/26/20. (pb) Modified on 10/26/2020 (pb).

Case: 3:18-cv-00166-WHR Doc #: 118 Filed: 10/26/20 Page: 1 of 23 PAGEID #: 2441

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
NATIONWIDE AGRIBUSINESS
INSURANCE COMPANY, etc.,
Plaintiff,

:
:
Case No. 3:18-cv-166

v.
DAVID MARTIN
CONSTRUCTION COMPANY, et
al.,

:

JUDGE WALTER H. RICE

:
:

Defendants.

DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY JUDGMENT OF
DEFENDANT CUSTOM HEATING & AIR CONDITIONING, INC. (DOC. #50);
SUSTAINING MOTION OF THIRD-PARTY DEFENDANT GEORGE ROBERT
CHARLES, DBA CHARLES PLUMBING TO STRIKE PARAGRAPH 7 OF THE
AFFIDAVIT OF DAVID MARTIN AND OVERRULING MOTION TO STRIKE
REMAINDER OF AFFIDAVIT; AND OVERRULING MOTION FOR SUMMARY
JUDGMENT OF THIRD-PARTY DEFENDANT GEORGE ROBERT CHARLES, DBA
CHARLES PLUMBING (DOC. #63)

Before the Court are two motions for summary judgment: Defendant,
Custom Heating & Air Conditioning, Inc.’s Motion for Summary Judgment
(“Custom Heating’s Motion”), Doc. #50, and Third-Party Defendant, George
Robert Charles, dba Charles Plumbing’s, Motion for Summary Judgment
(“Charles Plumbing’s Motion”), Doc. #63.

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Custom Heating’s Motion is not opposed by Plaintiff, Nationwide
Agribusiness Insurance Company (”Plaintiff” or “Nationwide”), Doc. #75. Also,
George Robert Charles, dba Charles Plumbing (“Charles Plumbing”), does not
oppose the motion although he asserts that the testimony of Custom Heating’s
expert witness, Kerry Autio (“Autio”), is inadmissible.1 Doc. #79. Defendant,
Martin Construction Company (“Martin Construction”), has filed a memorandum
in opposition, Doc. #81, and includes as an exhibit an affidavit of David Martin
(“Martin Affidavit”). Doc. #81-1. Custom Heating has filed a reply. Doc. #85.
Nationwide does not oppose Charles Plumbing’s Motion, Doc. #63, and
Custom Heating has not filed a response. Martin Construction, however, has filed
a memorandum opposing the motion, Doc. #82, and attaches the Martin Affidavit,
Doc. #82-1, as an exhibit. Charles Plumbing has filed a reply and requests that the
affidavit be stricken as a “sham affidavit” pursuant to Aerel, S.R.L. v. PCC Airfoils,

L.L.C., 448 F.3d 899, 906 (6th Cir. 2006). Doc. #91.

I.

Procedural Issues and Background Facts
Nationwide, the insurer of the home of Kent and Joan Darding, files this suit

for subrogation against Martin Construction and Custom Heating. The Amended
Complaint alleges that an early morning fire occurred at the Darding home on
January 29, 2017, originating at “the location above the basement fireplace and
Charles has filed a Motion in Limine, Doc. #64, seeking to limit the testimony of Autio,
Custom Heating’s expert witness. That motion has been overruled by separate Entry.

1

2

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directly below the first[-]floor fireplace at the front bottom face of the fireplace
hearth and extension.” Doc.#20, PAGEID#140. Plaintiff alleges that Martin
Construction, the builder of the home, and Custom Heating, a subcontractor,
“fabricated, assembled, supplied, constructed and installed the fireplaces in the
Darding home, including all components, framework and connections necessary
for same.” Id.
The fire at the Darding’s home occurred in the immediate area of the firstfloor fireplace. The finished fireplace had a black mesh screen, no glass doors, a
gas starter and a stone façade and hearth. Doc. #52, PAGEID#547. The fireplace
was constructed using a prefabricated fireplace that is also called a “fireplace
insert” or “fireplace box.” Doc. #57, PAGEID#1059; Doc. #57-1, PAGEID#1195.
David Martin (“Martin”) of Martin Construction “set the fireplace insert in the
hole.” Doc. # 57, PAGEID# 1058. When Martin Construction installed the first-floor
fireplace insert, the wood framing for the chimney chase way2 was in place. The
flues, chimney cap, stonework for the hearth, the gas line and piping for the gas
starter, however, were not completed.3 Id., PAGEID#1058-59. Although the
fireplace was later inspected, Martin Construction does not recall being with an

A “chimney chase” or “chimney chase way” is the area or structure around the metal
flue pipes. The chase is usually built with wood or steel studs with an exterior that can
include brick/stone veneer or wood siding or stucco.
2

Kuhlman Construction (“Kuhlman”) and David Brannum Construction contracted with
Martin Construction to build the brick and stonework for the chimney and hearth and
wood framing for the chase way, respectively. Id. at 1058-1059. They are not joined as
parties in this litigation.
3

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inspector when that occurred. Doc. #57, PAGEID##1064-65. He also does not
know if the inspector looked at the construction and placement of the hearth
during any inspection. Id., PAGEID#1065.
Custom Heating attached the flues for the first floor and basement
fireplaces from the point of attachment at the firebox, through the top of the
chimney chase. It also put the cap on top of the chimney. Doc. #53, PAGEID#602;
Doc. 53-2, PAGEID#632. Martin Construction supplied the flues to Custom
Heating.
Charles Plumbing, a third-party defendant, installed the gas starters in the
basement and first-floor fireplaces. Doc. #73, PAGEID#2158. The starters were
located inside each firebox, under the log grate. Doc. #52, PAGEID#547. The
firebox and flues were already in place when Charles Plumbing installed the gas
supply line for the gas starters. Doc. #73, PAGEID#2159. To install the gas
starters, Charles Plumbing had to run a propane gas supply line through the right
side of the firebox, where a “knockout piece” was located. Id., #73, PAGEID#2158.
Charles Plumbing testified that he worked with Martin to insulate the location
where the gas supply line passed through the firebox. Id. He states that Martin
used a braising rod that Charles Plumbing loaned him to try to pack the insulation
around the supply pipe. Id. Martin testified in his deposition that he did not look
to see whether there was insulation in the hole where the propane gas supply line
went through on the side of the fireplace insert. Doc. #57, PAGEID#1068.

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During the evening of January 28, 2017, Kent Darding started a fire in the
fireplace. To start the gas for a fire, a gas key valve, located to the right of the
fireplace, was turned. Id., PAGEID#546. A match was used to light the gas for the
fire. The gas was turned off once the wood logs began to burn. Id., PAGEID#547.
Mr. Darding last observed embers in the fireplace at approximately midnight
when he went to bed. Doc. #52, PAGEID#550. When the smoke alarm sounded at
approximately 2:30 a.m. on January 29, 2017, Mr. Darding investigated and saw
fire not in the fireplace but outside “on the sides and underneath, down in the
lower part.” Id. PAGEID#546. Because this was a fireplace insert, there was a gap
between the stone and the insert. Flames were present on “both sides and
underneath it where the stone stopped.” Id., PAGEID#550.
The Amended Complaint alleges that Martin Construction is in breach of a
March 16, 2011, contract it entered into with the Dardings to construct their home.
Doc. #20, PAGEID#154. It further alleges that it is the third-party beneficiary of a
“Subcontract” between Martin Construction and Custom Heating. Id.,
PAGEID##166-169. The “Subcontract” is dated June 4, 2012, and captioned
“Registered Builder Contract.” Id. Nationwide also alleges negligence claims
against both Custom Heating and Charles Plumbing.
Martin Construction filed a cross-claim against Custom Heating for
“indemnity, contribution and /or apportionment,” Doc. #24, and a third-party
complaint against Charles Plumbing. Doc. #21. Nationwide likewise asserted
claims, pursuant to Fed. R. Civ. P. 14(a)(3), against Charles Plumbing. Doc. #26.
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Each of the five parties have retained expert witnesses to determine the
cause and origin of the fire. Extensive discovery, including depositions of the
experts, has been conducted and is now complete.

II.

Standard of Review
Summary judgment must be entered “against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party=s
case, and on which that party will bear the burden of proof at trial.” Celotex

Corp.v. Catrett, 477 U.S. 317, 322 (1986). The moving party always bears the
initial responsibility of informing the court of the basis for its motion and
identifying those portions of the record which it believes demonstrate the absence
of a genuine issue of material fact. Id. at 323; see also Boretti v. Wiscomb, 930
F.2d 1150, 1156 (6th Cir. 1991).
“Once the moving party has met its initial burden, the nonmoving party
must present evidence that creates a genuine issue of material fact making it
necessary to resolve the difference at trial.” Talley v. Bravo Pitino Rest., Ltd., 61
F.3d 1241, 1245 (6th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986). Once the burden of production has so shifted, the party opposing
summary judgment cannot rest on its pleadings or merely reassert its previous
allegations. It is not sufficient to “simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond the
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[unverified] pleadings” and present some type of evidentiary material in support
of its position. Celotex, 477 U.S. at 324. “The plaintiff must present more than a
scintilla of evidence in support of his position; the evidence must be such that a
jury could reasonably find for the plaintiff.” Michigan Prot. & Advocacy Serv., Inc.

v. Babin, 18 F.3d 337, 341 (6th Cir. 1994).
Summary judgment shall be granted “if 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.” Fed. R. Civ. P. 56(a). “Summary judgment will not lie if the
dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
U.S. at 248. In determining whether a genuine dispute of material fact exists, a
court must assume as true the evidence of the nonmoving party and draw all
reasonable inferences in favor of that party. Id. at 255. If the parties present
conflicting evidence, a court may not decide which evidence to believe.
Credibility determinations must be left to the fact-finder. 10A Wright, Miller &
Kane, Federal Practice and Procedure Civil 3d ' 2726 (1998). In determining
whether a genuine dispute of material fact exists, a court need only consider the
materials cited by the parties. Fed. R. Civ. P. 56(c)(3). “A district court is not . . .
obligated to wade through and search the entire record for some specific facts
that might support the nonmoving party=s claim.” InterRoyal Corp. v. Sponseller,
889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). If it so

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chooses, however, the Court may also consider other materials in the record. Fed.
R. Civ. P. 56(c)(3).

III.

Legal Analysis
A. Custom Heating’s Motion for Summary Judgment (Doc. #50)
Custom Heating’s Motion seeks dismissal of Nationwide’s breach of

contract and negligence claims and Martin Construction’s cross-claim. The crossclaim alleges that if it is found liable for Plaintiff’s claim, it is entitled to “common
law and/or contractual indemnification, contribution[,] and/or apportionment”
from Custom Heating. Its claim for “contractual indemnification” is based on the
Registered Builder Contract. Doc. #24, PAGEID#223.
Plaintiff has filed a response stating that it does not oppose Custom
Heating’s Motion. Doc. #75. Martin Construction, however, argues that Custom
Heating’s Motion should be denied since this “is an unusual battle of experts.”
Doc. #81, PAGEID#2200.
1. Nationwide’s Amended Complaint
Nationwide, as the “subrogated insurer, stands in the shoes of the insuredsubrogor.“ Ohio Bur. of Workers’ Comp. v. McKinley, (2011) 130 Ohio St. 3d
156,162, 956 N.E. 2d 814. (citation omitted). As a subrogated insurer, it has no
greater rights than those that the Dardings had. Id. Although Plaintiff alleges
both negligence and breach of contract claims, under Ohio law and the facts of
this case, its only claim is for breach of an implied duty to construct a home in a
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workmanlike manner based on contract. Kishmarton v. William Bailey Constr.,

Inc., 93 Ohio St. 3d 226, 229, 754 N.E.2d 785, 2001-Ohio-1334 (answering certified
question that the nature of an action by a vendee against builder-vendor for
breach of a contract to build a residence in the future is the breach of an implied
duty to construct the house in a workmanlike manner arising ex contractu
(emphasis added)); Cf. Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio
St. 2d 376, 433 N.E.2d 147(holding that “[a]n action by a vendee against the
builder-vendor of a completed residence for damages proximately caused by
failure to construct in a workmanlike manner using ordinary care—a duty imposed
by law— is an action in tort * * *”).
Because the Dardings had no contract with Custom Heating, Nationwide
alleges it is an intended third-party beneficiary of the Registered Builder Contract
between Martin Construction and Custom Heating. To create rights as an
intended third-party beneficiary, Nationwide must establish that the Dardings
were intended and not incidental third-party beneficiaries to the contract. Huff v.

FirstEnergy Corp., 130 Ohio St.3d 196, 200, 957 N.E.2d 3, 6 (Ohio 2011); Hill v.
Sonitrol of Southwestern Ohio, Inc., 36 Ohio St.3d 36, 40, 521 N.E.2d 780, 784
(Ohio 1988). To determine if a third person is an intended beneficiary, courts
employ an “intent to benefit” test, Hill, 36 Ohio St.3d at 40, 521 N.E.2d at 784, and
first look to the parties’ expression of intent “in the language of the agreement.”

Huff, 130 Ohio St. 3d at 200, 957 N.E.2d at 7.

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The language in the Registered Builder Contract, however, makes no
reference to the Dardings or to any work to be performed at their home.
Moreover, Custom Heating has testified that this contract was not for a specific
job but was “just a general liability contract” for Martin Construction’s “insurance
audit.” Doc. #53, PAGEID#611. Based on this testimony and the Court’s review of
the Registered Builder Contract, Nationwide has failed to establish any expression
of an intent to benefit the Dardings and its contract claim as a third-party
beneficiary fails.
Accordingly, because the Court finds that there is no genuine dispute of a
material fact, Custom Heating’s Motion as to Nationwide’s Amended Complaint is
sustained.
2. Martin Construction’s Cross-claim
Custom Heating also moves for summary judgment on Martin
Construction’s cross-claim. The cross-claim asserts contractual indemnification
based on the Registered Builder Contract, common law indemnification and
contribution.4 In general, indemnification and contribution claims arise only if a
loss is suffered requiring a party to pay. Stengel v. Columbus, 74 Ohio App. 3d
608, 600 N.E. 2d 248 (Ohio Ct. App. 1991) (implied right of indemnity does not
accrue until the party seeking indemnity actually suffers a loss although the
“Indemnity arises from contract, either express or implied, and is the right of a person,
who has been compelled to pay what another should have paid, to require complete
reimbursement.” Worth v. Aetna Cas. & Sur. Co., 32 Ohio St. 3d 238, 240, 513 N.E.2d 253,
256 (Ohio 1987). Contribution in Ohio is governed by statute, R.C. 2307.25. It exists only
in favor of a tortfeasor who has paid more than its proportionate share.
4

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language of a contract controls when dealing with an express contract of
indemnity); Natl. Mut. Ins. Co. v. Whitmer, 70 Ohio St. 2d 149152, 435 N.E. 2d 1121
(1982) (right of contribution is inchoate and accrues when a party has paid more
than his share of the joint obligation).
In its motion, Custom Heating does not argue that Martin Construction, the
general contractor, has no legal right to assert a cross-claim against it as a
subcontractor. Instead, it asserts that, based on the expert testimony, there is no
genuine dispute of a material fact that its installation of the flues to the fireplaces
and placement of the cap on top of the chimney caused any damage to the
Darding home, creating any liability for Martin Construction. Accordingly, it
argues that its motion for summary judgment on the cross-claim should be
granted before the issue of liability on Plaintiff’s subrogated claim is resolved.
To determine whether Custom Heating’s Motion on Martin Construction’s
cross-claim should be granted, the Court will review the testimony of the expert
witnesses.
Plaintiff has identified two expert witnesses, Jim Hunter (“Hunter”), a cause
and origin expert, and Nick Leone (“Leone”), an expert in mechanical engineering.
Both opine that the installation of the flue piping and chimney cap was not
deficient and did not contribute to the fire. Doc. #54, PAGEID#676; Doc. #56,
PAGEID#880-881. They instead assert that the fire originated at the first-floor
fireplace and that the cause of the fire was due to improper installation of the
fireplace and a “gap” that existed at the front of the fireplace from missing metal
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safety strips. Doc. #54, PAGEID#669; Doc. #56, PAGEID#878. David Jansing,
Charles Plumbing’s expert witness, agrees with Hunter and Leone as to the origin
and cause of the fire. He also opines that the installation of the flue piping and
chimney cap was immaterial to the origin and cause of the fire. Doc. #55,
PAGEID#853. Custom Heating’s expert witness, Autio, identifies “two possible
causes” of the fire: improper installation of the first-floor firebox and/or the
installation of the first-floor gas line. The Court notes that neither of these alleged
“possible causes,” however, implicates Custom Heating. Doc. #46, PAGEID#394.5
Martin Construction opposes Custom Heating’s Motion arguing that “there
is a dispute” whether Custom Heating negligently installed the chimney flue
pipes” on the first-floor fireplace. Doc. #81, PAGEID#2195. It contends that
“circumstantial evidence” of negligence exists based upon Custom Heating’s
installation of the flue piping for the basement fireplace. In making this argument,
Martin Construction relies on the testimony of its expert witness, David Marzola
(“Marzola”).6 Id., PAGEID#2199.
Marzola testifies that the “the cause of the fire is undetermined” and that
there are “multiple ignition scenarios.” Doc. #58, PAGEID#1289. He states in his
deposition that there are three improper installation issues that may have caused

Charles Plumbing challenges the opinions of Custom Heating’s expert witness under
Fed. Evid. R. 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Doc. #64. This Motion is overruled in a separate decision and entry.
5

Because the Martin Affidavit, included as an exhibit in the response of Martin
Construction, does not reference Custom Heating or any of its installation work, it will not
be considered in ruling on Custom Heating’s Motion. Doc. #81-1.
6

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the fire: (1) “improper installation of the fireplace insert” and failure to install
metal safety strips, Id., PAGEID##1293,1284; (2) improper installation of “the
fireplace flue and wood framing” resulting in “inadequate clearance to the wood
framing at the location between the wood framing and the flue pipe” Id.,
PAGEID##1271 and 1273; and (3) improper installation of the propane gas supply
line for the fire starter on the first-floor fireplace insert. Id., PAGEID#1293. Marzola
states in his deposition that he cannot reach a conclusion as to any one of the
improper installation issues being “more than 50 percent probable to being the
cause.“ Id. Specifically, as to Custom Heating’s installation, Marzola testifies that
he could not opine, within a reasonable degree of certainty, that: (1) the first-floor
installation of the flue had any relationship to causing or contribute to causing the
fire or (2) that the installation of the basement flue had any relationship to causing
or contributing to the causing of this fire. Marzola also states that he has no facts
“to suggest that installation of the chimney chase cap had any relationship
whatsoever to cause or contribute to cause the fire.” Id., PAGEID#1289.
Ohio law is clear that “the expression of probability is a condition precedent
to the admissibility of expert opinion regarding causation.” Stinson v. England, 69
Ohio St.3d 451, 455, 633 N.E.2d 532, 537 (1994). This condition precedent “relates
to the competence of such evidence and not its weight.” Id. Accordingly, an
expert opinion on causation must be more than a fifty percent likelihood of
causation.

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Based on the testimony of the expert witnesses, there is no dispute of a
material fact that Custom Heating’s installation of the flues to the fireplaces and
placement of the cap on top of the chimney caused any damage to the Darding
home creating liability for Martin Construction. Marzola’s testimony does not
establish liability for Custom Heating for either indemnification or contribution,
whether the claim is for contractual indemnification under the Registered Builder
Contract or implied indemnification based on the relationship of the parties,

Mahathiraj v. Columbia Gas of Ohio, Inc., 84 Ohio App.3d 554, 563–64, 617 N.E.2d
737, 743 (Ohio Ct. App. 1992)(implied indemnification exists “where a party owes
only secondary legal responsibilities and is passively negligent”), Marzola’s
opinion must be more than a fifty percent likelihood of causation. Id., at 455.
Similarly, under a claim of contribution, governed by Ohio Rev. Code Ann.
§ 2307.25(A), Martin Construction must establish that Custom Heating is liable for
the damages and that it paid more than its proportionate share of the common
liability. As seen above, Marzola’s testimony does not permit such a conclusion.
Accordingly, Custom Heating’s Motion as to the cross-claim of Martin
Construction (Doc. #50) is sustained.

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B. Charles Plumbing Motion for Summary Judgment (Doc. #63)
Charles Plumbing’s Motion argues that there is no “competent evidence
that any alleged act or omission of Charles [Plumbing] caused” the fire. Doc. #63,
PAGEID#1840. Plaintiff does not oppose the motion and contends that “the cause
of the fire” “is not related to any work of Third[-]Party Defendant Charles.” Doc.
#76, PAGEID#2174.7 Martin Construction, however, asserts in its third-party
complaint that Charles Plumbing is liable for “indemnity, contribution[,] and/or
apportionment”8 for any recovery it must pay to Plaintiff, Doc. #21, PAGEID#172.
Martin Construction argues that because the experts assert “multiple causes of
the fire,” genuine issues of material fact remain that preclude summary judgment.
Doc. #82, PAGEID#2206. Its response attaches the Martin Affidavit. Doc. #82-1.
Charles Plumbing contends that the Martin Affidavit should be stricken from
Martin Construction’s response because it is a “sham affidavit.“ Aerel, S.R.L., 448
F.3d at 906.
Before analyzing Charles Plumbing’s Motion, the Court will first review the
Martin Affidavit and his prior deposition testimony to determine if is a sham
affidavit or can be considered in deciding Charles Plumbing’s Motion.

Nationwide states that “the third-party claims asserted by Plaintiff against Third[-]Party
Defendant Charles by way its Rule 14(a)[ ](3) Complaint also fail as a matter of law in the
event that the Motion for Summary Judgment filed by Third[-]Party Defendant Charles is
granted.” Id., PAGEID#2175.
7

Martin Construction has admitted that its Registered Builder Contract with Charles
Plumbing, dated February 25, 2012, does not apply to the work at the Darding home. Doc.
#63-1, PAGEID#1859.
8

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1. The Martin Affidavit.
It is well-established that a party cannot defeat a motion for summary
judgment “simply by contradicting his or her own previous sworn statement (by,
say, filing a later affidavit that flatly contradicts that party’s earlier sworn
deposition) without explaining the contradiction or attempting to resolve the
disparity.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); Kelso v.

City of Toledo, 77 Fed. Appx. 826, 834 (6th Cir. 2003). If an affidavit directly
contradicts sworn deposition testimony and there is no “persuasive justification”
for it, it will be stricken. Aerel, 448 F.3d 908. Absent a direct contradiction, an
affidavit should not be stricken unless it is an attempt “’to create a sham fact
issue.’” Id., (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)). To
determine whether the affidavit is creating a sham fact issue, a court must
examine a “nonexhaustive list of factors” including
whether the affiant was cross-examined during his earlier testimony,
whether the affiant had access to the pertinent evidence at the time
of his earlier testimony or whether the affidavit was based on newly
discovered evidence, and whether the earlier testimony reflects
confusion [that] the affidavit attempts to explain.

Id. at 908–09 (quoting Franks, 796 F.2d at 1237).
Charles Plumbing first asserts that Martin testified during his deposition
that after he completed installation of the fireplace and after the hearth had been
installed, he “did not recall seeing a gap.” Doc. #57, PAGEID#1069.
Q. But do you recall seeing a gap of the type and size that is depicted
in the photographs that you just looked at after you had completed
installation of the fireplace insert and after the hearth had been
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installed at that location?
A. No.
Q. You recall no gap?
A. No. No, that's not your question. Your question was did I recall
seeing one.
Q. You do not recall seeing a gap?
A. Correct.
Q. You're not saying that there necessarily wasn't a gap, you just don't
recall seeing a gap?
A. Correct.
Doc. #57, PAGEID#1069.
The Martin Affidavit references a “gap” at the fireplace. The relevant
portion of the affidavit states, at paragraph 7, that “[T]here was no gap at the front
of the firebox with exposed combustibles at the time of the completion of
construction.” Doc. #82-1, PAGEID#2215. This paragraph of the affidavit is a direct
contradiction of Martin’s May 10, 2019, deposition testimony and provides no
explanation for this change in testimony. Accordingly, paragraph 7 of the Martin
Affidavit is stricken and the Court will not consider it in deciding Charles
Plumbing’s Motion.
The remainder of the Martin Affidavit does not directly contradict Martin’s
earlier deposition testimony. Moreover, based on a review of Martin’s deposition
testimony, it should not be stricken as a “sham affidavit.” Martin’s deposition
testimony states that there “was a wooden floor system,” Doc. #57, PAGEID#1069,
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and that a subcontractor did the stonework for the hearth. Doc. #57,
PAGEID#1058. He also testified that he did not recall if metal safety strips came
with the fireplace insert but, if they did, he would have installed them. Id.,
PAGEID##1068-1069. Additionally, with respect to Charles Plumbing, Martin’s
deposition states that he did not look to see whether insulation was provided at
the location where this propane gas supply line went through the hole on the side
of the fireplace insert. Id., PAGEID#1068. According to his deposition, Martin also
could not recall participating in packing insulation into the wall outside of the
insert (emphasis added). Id., PAGEID#1078.
The Martin Affidavit regarding these topics reads as follows:
4. There was a hearth extension in front of the fireplace which was
made of wood framing, covered in OSB board.
5. At some time after the installation of the firebox, the masonry sub­
contractor installed metal mesh into which he troweled cement. He
covered this with cement board flush with the metal fireplace insert.
Then he covered the hearth extension with stone. There was no OSB
left exposed. (See Hunter &Leone Report, Document 63-2, Page 51 of
63, Page I.D. 1917, and Document 63-2, Page 56 of 63, Page I.D. 1922.)
6. Such materials are not combustible.
8. I did not assist with the installation of the gas line or the gas log
starter.
9. I did not have any role or take part in insulating the hole through
which the gas line was installed. Such was done solely by Charles
Plumbing.
Doc. #82-1, PAGEID#2215.

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Although Martin’s deposition testimony shows that he was cross-examined
on some of the topics that appear in paragraphs 4, 5, 6, 8 and 9 of his affidavit, he
was not specifically questioned about them. Martin was “under no obligation to
volunteer information not fairly sought by the questioner.” Aerel, S.R.L., 448 F.3d
at 907. Nor did he respond to the deposition questions in a way that indicated a
total lack of knowledge on these subjects. An affidavit should not reflexively be
stricken since it can fill “a gap left open by the moving party and thus provides the
district court with more information, rather than less, at the crucial summary
judgment stage.” Id. Paragraphs 4, 5, 6, 8 and 9 of the Martin Affidavit do not
contradict Martin’s prior deposition testimony nor do they create a sham fact
issue. As such, paragraphs 4, 5, 6, 8, and 9 will not be stricken and will be
considered by the Court in ruling on Charles Plumbing’s Motion.
2.

Charles Plumbing’s Alleged Failure to Insulate the Hole in the
Fireplace Insert.

Charles Plumbing argues that whether Martin Construction’s cross-claim is
for implied indemnification or contribution,9 it fails since there is no “competent
evidence” showing that there exists a causal connection between the alleged lack
of insulation in the gas supply line running through the right side of the fireplace
insert and the fire. Doc. #63, PAGEID#1840. He asserts that based on the testimony
of all of the expert witnesses, there is no genuine issue of a material fact that his
alleged failure to insulate was the cause of the fire. Because the expert testimony
See, n. 4, supra.

9

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differs somewhat from that analyzed in Custom Heating’s Motion, the Court will
review this testimony as it pertains to Charles Plumbing’s Motion.
Although Nationwide’s expert witnesses, Hunter and Leone, opine that the
cause of the fire was the fireplace installation and the failure to install safety
strips, Leone, a mechanical engineer, testifies that an alleged failure to “repack”
the fiberglass insulation in the hole where the gas supply line goes into the
fireplace insert is a “deficiency.” Doc. #54, PAGEID##677 and 672-73; Doc. #56,
PAGEID#882; Doc. #54, PAGEID#669; Doc. #56, PAGEID#878. Leone explains,
however, that this “deficiency” was not a cause of the fire. Doc. #56,
PAGEID#882. Charles Plumbing’s expert witness, David Jansing, is in agreement
with Plaintiff’s experts as to the cause and origin of the fire. Doc. #55,
PAGEID#851.
Martin Construction argues that Charles Plumbing’s Motion cannot be
granted since Marzola, Martin Construction’s expert witness, and Autio, Custom
Heating’s expert witness, opine that the failure to insulate may have caused the
fire. Marzola testifies that the alleged missing insulation at the juncture of the
propane gas supply line into the fireplace insert is one of three possible
“scenarios” of the fire. He opines, however, that none of the three possible
causes are greater than 50 percent. Doc. #58, PAGEID#1289-90. Moreover, this
expert witness testifies that he could not give an opinion that the alleged missing
insulation was more likely than not the cause of the fire. Id., PAGEID#1290.

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Autio testifies, “within a reasonable degree of certainty,” that there are only
two “possible causes” for the fire: “heat coming out through the hole provided for
the gas line on the right side of the firebox” or embers coming out from the
fireplace and falling through between the juncture of the hearth and the firebox.
Doc.#59, PAGEID#1409. As to the first “possible cause,” Autio explains that heat
from the fireplace traveled through the uninsulated hole resulting in the wood
frame drying out, lowering its ignition temperature and creating pyrolysis, the
drying out of wood. Doc. #59, PAGEID#1840. At some unspecified point in time, it
“potentially will catch fire [and] ignite.” Id., PAGEID#1414. He asserts that
pyrolysis could occur in a span of five years, the approximate amount of time that
the Dardings lived in their home, but admits that he did no test to determine the
amount of heat transfer required to create pyrolysis on the framing of the
fireplace. Id, PAGEID#1438. Autio also testifies in his deposition that he was
skeptical of the second “possible cause” of the fire, embers falling through a gap
between the hearth and the fireplace insert. He states that as between the two
“possible causes,” it was “hard to imagine that many embers coming out and
dropping down” and causing the fire “but I can’t eliminate it.” Id., PAGEID#1433.
He testifies that the ignition source for the fire “would probably most likely have
been the heat from the fireplace” and not embers or sparks escaping out of the
uninsulated hole. Id., PAGEID#1414.
Ohio law is clear that experts are “precluded from engaging in speculation
or conjecture with respect to possible causes.“ Stinson, 69 Ohio St.3d at 457.
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Moreover, expert opinions must be expressed in terms of probability. Id. at 455.
Although Marzola and Autio may rebut Plaintiff’s theories with alternative causes,
once offered, the alternative causes “must be expressed in terms of probability
irrespective of whether the proponent of the evidence bears the burden of
persuasion with respect to the issue.” Id. at 451.
The deposition testimony establishes that Marzola cannot state an opinion
that Charles Plumbing’s alleged failure to insulate is more likely than not the
proximate cause of the fire. Accordingly, Marzola’s expert testimony does not
create a genuine issue of a material fact as to Charles Plumbing’s Motion. The
same, however, cannot be said of Autio’s testimony. Although this expert
repeatedly testifies in his deposition as to two “possible causes,” he also testifies
that the ignition source for the fire “would probably most likely have been the
heat from the fireplace” and not the theory of the gap implicating Martin
Construction. Id., PAGEID#1414. Because the evidence must be viewed in the
light most favorable to the nonmoving party and credibility judgments should not
be made in deciding motions for summary judgment, Autio’s testimony of
“probably most likely” precludes summary judgment.

IV. Conclusion
For the reasons set forth above, the Motion for Summary Judgment of
Defendant Custom Heating & Air Conditioning, Inc., Doc. #50, is SUSTAINED. The
Motion of Third-Party Defendant George Robert Charles, dba Charles Plumbing, to
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Strike paragraph 7 of the affidavit of David Martin, Doc. #82-1, is SUSTAINED and
OVERRULED as to the remainder of the affidavit. The Motion for Summary
Judgment of Third-Party Defendant George Robert Charles, dba Charles
Plumbing, Doc. #63, is OVERRULED.
The following claims remain pending for trial: (1) Plaintiff Nationwide
Agribusiness Insurance Company’s claims as alleged in its Amended Complaint
against Defendant David Martin Construction Company, Doc. #20; (2) Plaintiff
Nationwide’s cross-claims against substituted party William P. Allen,
Administrator of the Estate of George Robert Charles for George Robert Charles
dba Charles Plumbing, Doc. #26; and (3) Defendant David Martin Construction
Company’s Third-Party Complaint against substituted party William P. Allen,
Administrator of the Estate of George Robert Charles for George Robert Charles
dba Charles Plumbing, Doc. #21.

Date: October 26, 2020

(tp - per Judge Rice authorization after his review)
_________________________________
WALTER H. RICE
UNITED STATES DISTRICT JUDGE

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