Hartford Insurance Co. of the Midwest as subrogee of Theodore Maltbie v. LLC TLC (2011)

MEMORANDUM OF DECISION

The plaintiff Hartford Insurance Co. of the Midwest, as subrogee of Theodore Maltbie, sues defendant Hop Energy, LLC d/b/a Automatic TLC Energy in counts of negligence and breach of contract arising out of the freezing of pipes in the home of Theodore Maltbie in the winter of 2007-08.   The defendant pleads special defenses of contributory negligence of Theodore Maltbie and estoppel.   The defendant, in a third-party complaint pleads apportionment/contribution and breach of contract/indemnification against third-party defendant Theodore Maltbie.   The parties agreed to bifurcate the case, trying the issue of liability first and then damages.   The facts are as follows.

In 2007 and 2008, Theodore Maltbie owned a house at 22 Stratford Road, West Hartford, Connecticut.   The house was insured by the plaintiff, the Hartford Insurance Company of the Midwest (Hartford).   Mr. Maltbie entered into a furnace service agreement with the defendant HOP Energy, LLC (HOP) which provided, “If you are without heat during the heating season, we will service your oil burner or controls at any hour of the day or night ․” The agreement further provided that the defendant would not be liable and the customer agreed to hold the defendant harmless from any and all claims resulting from freezing of pipes.   The service agreement also provides it “does not cover vacant or unattended homes.”

Maltbie also had an oral agreement with the defendant HOP to provide automatic heating oil delivery.   The defendant represented it had a state-of-the-art computerized monitory program, based on the “degree-day” system, that would accurately forecast Maltbie's need for heating oil deliveries.

Maltbie moved out of his house on Stratford Road in or about July 2005 to an assisted living facility in Cambridge, Massachusetts.   He arranged for a neighbor to look in on the house from time to time as a volunteer.   After Maltbie left his home, he continued to receive automatic oil delivery services from the defendant.   The bills were sent to Mr. Maltbie's new address in Cambridge, Massachusetts.

Mr. Maltbie's son Peter stayed at the house during the week of November 7 through November 14, 2007.   On November 8, 2007, defendant delivered to the house four gallons of oil.   Peter was home at the time and confirmed that the tank was full.   The oil delivery ticket for that date of November 8, 2007 notes:  “Tank is full, customer checked.”   After the November 8 delivery, Peter contacted defendant service department to notify it that the furnace was not functioning.   A defendant service technician visited the home, observed a problem with the chimney and was able to get the system to operate before leaving.   On November 14, 2007, another defendant service technician performed an annual maintenance check-up, confirming that the oil tank was full and the system was functioning.   After Peter left on November 14, the house remained vacant again.

On December 10, 2007, defendant delivered 224.4 gallons of oil to the house, the largest delivery of oil recorded by the defendant.   Plaintiff's expert, Scott Elias testified that delivery of oil in excess of 200 gallons reveals the oil in the tank has gotten low, and sediment could be drawn into the fuel lines which would affect the operation of the oil burner.   The evidence was that the defendant did not initiate an investigation about the large amount of oil delivered, or notify Mr. Maltbie.

On January 4, 2008, defendant delivered 2.7 gallons.   The delivery ticket and report of that small delivery were placed on the desk of the defendant employee who was supposed to investigate the matter.   However, that person was on vacation and nothing was done.

Plaintiff's expert, Mr. Elias, opined that the tank had either completely run out of oil before the December 10th delivery, or had run so low that the sediment from the bottom of the tank had clogged the oil burner, causing it to shut down.

When Mr. Maltbie got defendant's bill on January 6, 2008 showing a delivery of 2.7 gallons of oil, he called his real estate agent and asked her to check on the house.   She went to the house at 4:00 that afternoon and noticed water flowing out the front door and windows.   She called the fire department which turned off the water, and the fire department called Connecticut Light & Power to shut off the power.

Mr. Elias opined that the pipes most likely froze between January 2 and January 4, 2007.   Water damage does not occur until the frozen water thaws and escapes from the cracks in the pipes.   Elias testified that the thawing did not occur until after January 6, when the temperatures became unseasonably warm.

The plaintiff's allegations of negligence in the first count of its complaint are that defendant “failed to warn plaintiff's insured when it made an unusually large delivery on November 10, 2007,” and “failed to warn the plaintiff's insured when it made an unusual small delivery of fuel on January 4, 2008.”

The essential elements of a negligence case are a duty, breach of that duty, causation, and injury.  Neff v. Johnson Memorial Hospital, 93 Conn.App. 534, 541-42 (2006).

Duty derives from a consideration of “whether the defendant knew, or should have known, that the situation at hand would obviously and naturally, even though not necessarily, expose [plaintiff] to probable injury unless preventative measures were taken.”  LePage v. Horne, 262 Conn. 116, 124 (2002).   Duty implicates the standard of care required in a given situation.   “If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required.”  Santopietro v. New Haven, 238 Conn. 207, 226 (1996).

The nub of this case is not that the defendant failed to deliver oil within the prescribed number of degree days.   If it failed to do so, common sense would dictate that it breached the duty of an automatic fuel delivery service and no expert testimony would be needed.   The nub of this case is that the defendant delivered too much oil on December 10, 2007 and too little on January 4, 2008.

The evidence was that the defendant did not know Theodore Maltbie was not living in the house in the winter of 2007-08.   Defendants' service manager testified it was not unusual for bills to be mailed to an address other than where oil was delivered.   It was also not unusual for a small amount of oil to be delivered because customers sometimes bought it at a cheaper price from a company other than their regular supplier.   Moreover, oil delivery companies rely on customers to notify them that a furnace has stopped working.

The oil delivery business is licensed by the state and is subject to oversight by the Department of Consumer Affairs and the Department of Environmental Protection.  Gen.Stat. § 16a-23m and 16a-23p.   It is a specialized service.

The standard of care and prudent steps defendant should have taken under the facts of this case are beyond the purview of the average person and require the testimony of an expert in that field.

In Santopietro v. New Haven, supra, at 225 the court held, “The standard of care applicable to a [softball] umpire, whether that standard was breached, whether that breach caused the plaintiffs' injuries are not matters of common knowledge.”   In Keeney v. Mystic Valley Hunt Company, Inc., 93 Conn.App. 368, 376 (2006), the court held, “We conclude that the proper method of teaching a novice [horseback] rider, the qualification necessary to be a competent and qualified instructor of a novice rider ․ are not matters within the common knowledge of the jury but, rather, are specialized matters unique to the profession of those teaching novice riders.”   In Dipietro v. Farmington Sports Arena, 2007 Conn.Sup. Lexis 2129, the court said, “The issue of whether the use of this particular carpet for a playing surface for indoor soccer constitutes a dangerous condition requires expert testimony because it is ‘beyond the field of the ordinary knowledge and experience of judges or jurors.’ “

Plaintiff offered the testimony of Mr. Elias as to the cause of the pipes freezing at the Stratford Road house.   But he admitted that he was not an expert on the standard of care required of a company engaged in the automatic delivery of oil and offered no expert opinion as to the proper practice such a company should take when it delivered a large amount of oil to a home, followed by a small amount of oil.   When it delivered too much, was it alerted to the fact that sludge at the bottom of the oil tank, might get into the furnace?   When it delivered too little, was it alerted to the fact that the furnace was not then working?   If it was so alerted, what remedial steps did it have the duty to take?   Did it have the right to rely on the homeowner to inform it of a furnace malfunction?   If so, within what period of time?   These are matters that require expert testimony.   The plaintiff, having failed to provide such testimony, failed to prove its count of negligence.  Keaney v. Mystic Valley Hunt Club, Inc., 93 Conn.App. 368, 376 (2006).

As to the breach of contract count, plaintiff alleged that defendant did not perform its service in a workmanlike manner.   The service agreement specifically did not cover a vacant or unattended house, which was the situation as to the Maltbie home in 2007-08.   It also exonerated defendant from damages resulting from freezing pipes.   Finally, plaintiff never established what was a workmanlike manner for the performance of the oil delivery service.   As a result, plaintiff failed to prove this count.

The plaintiff, having failed to establish liability as to either count, the court need not reach the issue of damages or the merits of the third-party complaint.   Judgment may enter for the defendant.

Satter, J.T.R

Satter, Robert, J.T.R.