ETC v. Westmore Fuel Company, Inc. et al. (2012)

MEMORANDUM OF DECISION

I. Procedural and General Fact Background

The plaintiff Assurance Company of America (Assurance) as subrogee of RML Builders, LLC., (RML) sued the defendants Westmore Fuel Company, Inc. (Westmore) and John Faccio Heating Co., Inc. (Faccio) to recover monies paid to its insured RML as indemnity for losses resulting from water damage to a residence owned and being constructed for sale by RML. The damage occurred when water in a hydronic ¹ coil of an air handler located in the unheated third floor attic of the residence froze, ruptured the coil, and then melted, resulting in hundreds of gallons of water spilling out of the attic into and onto the walls, ceilings and floors below.

In the summer of 2005 Steven Nemiroff, a member of RML, and apparently in charge of constructing a new house to be known as 324 Erskine Road in Stamford, Connecticut contracted with Westmore for the latter to undertake the installation and piping of a boiler and indirect hot water heater (each to be purchased by RML) at the above premises.²  Westmore was to secure the permits required, make sure the installations complied with the applicable laws, “run” the equipment after installation, and include “all necessary materials and labor for a complete and professional installation.”   Exhibit (Ex.) 2. Westmore was to supply heating oil fuel to the premises, hook up the boiler to other pipes in the building, start up the heating system and provide service to the system.   Tr. I, 38–40.   Subsequently, the scope of the undertaking increased to include the installation of two oil tanks.   Ex. 3. The hook-up work was largely completed in October 2005.

During this time it was noted by Westmore and Nemiroff that no pipes connected the boiler to a piece of equipment, known as an air handler, that had already been installed in the third floor attic by Controlled Temperatures, Inc. The air handler at issue was part of a heating and cooling system for the second floor of the premises and consisted inter alia of a large box, inside of which were hydronic coils.   To provide heat the air handler received hot water from the boiler and the coils transferred the heat to the air and the warm air was moved through duct work from the air handler to the second floor.

Nemiroff contacted the plumbing company that had initially done the plumbing work on the premises.   For reasons unknown that company (Tarzia Plumbing and Heating) suggested Westmore for the job, and also for reasons not entirely clear Westmore suggested a company owned by a former Westmore employee John Faccio for the job.   Faccio did the work to install two pipes from the boiler to the third floor attic air handler.   The length of the pipes installed in the attic by Faccio were insulated as the attic space was not heated (in the parlance, the space was not “conditioned.”)   The heating system was up and running in late October 2005, according to Westmore records and invoices.   In fact, there was a service call to Westmore on November 7, 2005 of no heat on the second floor resulting from the fan in the air handler not working.   Exhibit 12, Tr. I, 61–64.   On January 18, 2006 Nemiroff stopped by the premises, as he was regularly wont to do since the house was on the market, and found water pouring from the attic and flowing all over the inside of the house.   The water was coming from the air handler unit in the third floor attic, and the flow did not stop until the water source to the house was cut off.

The evidence is undisputed that the sources of the water flow were numerous small holes in the hydronic coils inside the air handler caused by the freezing of the water in the coil.   The third floor attic was not insulated according to Nemiroff and generally confirmed by photograph no. 7 in Exhibit 26 (showing uninsulated attic roof and walls in the area of the air handler.   The plaintiff's expert, Steven Pietropaolo, concluded from the “fish mouth” type of apertures, or holes, in the metal coils and the fact that January 16, 2006 was the coldest day of the month while January 18 was the warmest, that the burst of water from the coils was caused by the freezing and subsequent thawing of non-circulating water in the coils.   Tr. II, 45, 48–52.   While some of Pietropaolo's conclusions were contested at trial, this one was not.   Tr. III. 46–47.

RML's insurance company, Assurance, arranged for an entity called ServiceMaster to abate the water damage and remove damaged materials from the premises.   This involved, among other things, opening walls to remove wet insulation, removing damaged trim, floors and subfloors and operating dehumidifying equipment in house.   Tr. I. 84–85.   Assurance paid RML $115,909.10 under its insurance policy, some of which was paid directly to ServiceMaster.   In connection with the payment of RML's claim, RML subrogated all its rights and claims against any person or corporation liable for RML's loss.   During the claim investigation it was discovered that no “liquid freeze protection,” (or antifreeze usually a glycol product) was put in the water circulating between the boiler and the air handler.   Assurance has filed and maintained claims in this lawsuit of negligence, breach of contract, breach of express and implied warranties and recklessness against Westmore and Faccio.   These claims were generally denied.   A trial to the court took place on January 24, 26 and 27, 2012.   On the second day of trial Assurance announced it had settled its claims against Faccio, and a withdrawal against that defendant was subsequently filed.   The remaining parties filed comprehensive post-trial memoranda on April 13, 2012.   All parties were well represented by counsel during the trial and in the post-trial briefing.

II. Discussion

A. The Parties' Contentions.   Assurance contends that Westmore was both negligent and in breach of its contract with RML and in breach of various warranties when it failed to see to it that the air handler in the third floor attic, specifically the hydronic coils within, were protected by glycol or some other antifreeze or liquid freeze protection in the heating system.   Assurance claims that it goes almost without saying that water conducting heating systems cannot be established or allowed to operate in areas where freezing temperatures prevail because of the danger of what happened in this case—a major occasion of water damage in the house below.

Westmore makes several arguments in its defense.   It points out that while it installed a boiler, burner and indirect water heater in the basement, per contract, the air handler was installed in the third floor attic by a non-party, Controlled Temperatures, Inc., and the pipes connecting the boiler with the air handler were installed by Faccio.   Westmore contends it is “undisputed and uncontested” that it was never hired to install the air handler or pipes leading to it.   Westmore contends further that while it had a duty to perform its contract obligations in a careful and non-negligent manner that duty did not extend to work performed by others, or providing freeze protection to the air handler.

B. The Evidence.   The relationship between Westmore and RML appears to have begun with a written “Agreement for Boiler/Burner Installation with Automatic Fuel Delivery” signed in June 2005 by Nemiroff and Glen Nadin for Westmore.   Ex. 2. In the agreement Westmore declares that it is licensed to install “boiler, furnaces, oil burners and oil storage tanks,” and RML allows Westmore to “connect, disconnect, remove or locate” throughout the residence basement.   Id. In the “specifications” section the agreement states the owner is to supply boiler, burners and indirect water heater;  the “heating contractor” is “to leave supply and return pipes from each air handler above the area where the boiler is placed.”  Id. There is also a list of equipment to be installed which makes no mention of an airhandler or hydronic coil;  however, it includes “all necessary materials and labor for a complete and professional installation.”   The agreement called for Westmore to comply with all applicable federal, state and local laws, but states it is not liable “for any problems not directly a part of the installation.”  Id. In July 2005 RML and Westmore agreed the latter would supply and install two 330–gallon oil tanks.   Ex. 3.

According to the testimony at trial either Nemiroff or someone with Westmore noticed the lack of pipes between the third floor attic air handler and the boiler.   As suggested by Westmore, Nemiroff contacted Faccio and testified he negotiated a price of $900 to install the pipes.   John Faccio testified he may have mentioned an hourly rate to Nemiroff but does not remember negotiating a job price.   Tr. III, 24–25.   Faccio testified he believed he was subcontractor of Westmore while working at the RML premises.  Id., 17–18.   Faccio testified that he recommended liquid freeze protection to Nemiroff because the attic was a cold area, but Nemiroff replied the attic would be a heated area.   Id., 8–14.   Nemiroff denied discussing freeze protection with Faccio or saying that the third floor attic would be heated space.   Tr. III 61;  Tr. I, 136–37.   The invoice for Faccio's work was sent to Westmore and Westmore sent its own invoice to RML. It was for over $1,800.   Ex. 16.   This amount was disputed by RML in a letter dated February 23, 2006.   Ex. 17.   That letter seems to dispute that Faccio was a subcontractor of Westmore.   Eventually the bill was settled for $950.00.   Ex. 18;  Tr. I, 103.

Assurance and Westmore offered expert witness testimony.   For Assurance, Pietropaolo reviewed the purpose of an air handler as a means to transfer the heat in the hot water pumped up from the boiler to air which would then be blown through duct work to warm the second floor.   The transfer is effected by pushing the hot water through hydronic coils causing the coils to become warm and thus warming the air that comes into contact with the coils.   Because of its small size a large percentage of the hot water comes into contact with the coil making the transfer of heat more efficient.   As a result of the transfer of heat from water to air the water in the coils becomes cooler, and when the temperature in the second floor rises to the desired level the flow of new hot water from the boiler ceases, leaving the cool stagnant water in the coils subject to the ambient temperature in an uninsulated attic.   Tr. II, 46–53.   As noted earlier Pietropaolo ascribed the cause of the water damage to the freezing and eventual melting of the water in the coils.

Pietropaola testified it was not practical to insulate the coil because that takes away the purpose of the coil which is heat transfer.  Id., 59.   To facilitate the transfer the walls of the coils are very thin and more susceptible to freeze fractures.  Id., 59, 83.   He testified that the air handler was in an unheated attic space which had soffit vents bringing outside air into the area.  Id., 59.   He described the air handler as being designed for indoor use.  Id., see also Ex. 26 (Advance Distributer Products, Multiposition Air Handlers, Installation Instructions, p. 1).

Pietropaolo testified that subsequent to the water damage occurrence in January 2006 glycol was introduced into the heating system at the RML premises.  Id., 67;  Ex. 24.   The air handler was designed to work with glycol.   Tr. II, 68;  Ex. 26 (Advanced Distributor Products, Air Handler, Installation Instructions, pp. 18–20).

It was Pietropaolo's conclusion that there was an industry standard applicable to this case.   He stated it to be:

You don't put anything that has water in it in an unheated unconditioned space where it's subject to freezing conditions.   There are several ways to protect it from doing that including putting it in a heated space, installing some sort of freeze protection in the form of antifreeze, like glycol, or putting controls in place so you allow the water to circulate.

There are simple devices that are available and were available in 2004 that can be installed on a unit to allow for the circulation of water even when there isn't a call for heat.

Tr. II, 71.

On cross-examination Pietropaolo asserted he was aware that Controlled Temperatures installed the air handler but did not fault that entity which he described as working on the air conditioning side of the project and had nothing to do with the hydronic (heating using water) aspect.  Id., 96–97.   He stated it was “incumbent on the persons who are creating the hydronic loop, the plumber and the company that installs the boiler and starts up the system to ascertain whether or not there is freeze protection in the system” Id., 104;  see also Id., 132.   Pietropaoio testified that Westmore had breached the industry standard of care Id., 137;  see also Ex. 24 (Pietropaolo's written report at p. 2).

Also on cross examination, Pietropaolo testified his written report stated that freeze protection was required by applicable statutes and codes but conceded the report did not identify any such codes.   He also conceded that the plumbing code did not directly apply.  Id., 82, 111.   He agreed with defendant's counsel that glycol made the heating system work harder and required additional sizing of pumps and equipment and the manufacturer's instructions as to the air handler did not require the use of glycol.  Id., 112–13.   Guidelines in the 2004 Handbook published by the American Society of Heating, Refrigerating and Air–Conditioning Engineers, Inc. (ASHRAE) on “Heating, Ventilating and Air–Conditioning Systems and Equipment” state “[i]n systems in danger of freeze-up, water solutions of ethylene glycol and propylene glycol are commonly used ․ [and though expensive and might create problems] may be the only practical solution in many cases.”   Ex. 28.   Pietropaolo agreed that the above ASHRAE guideline was in a section entitled “Design Procedures,” although the court does not agree with that concession.   In fact, the language quoted above comes from a section entitled “AntiFreeze Solutions” that follows the “Design Procedures” section.

Westmore called Lois Roberts, P.E. as an expert witness.   She is a licensed mechanical engineer who designs mechanical systems for commercial and residential buildings.   She agreed with Pietropaolo's conclusion that the water flow and resulting damage was caused by the freezing and thawing of the water in the hydronic coil in the third-floor attic air handler.   Tr. III, 46–47.   Roberts testified there were several options available to provide freeze protection including heating and insulation, maintaining water circulation and adding liquid freeze protection to the water.   Tr. II, 144–46.

Roberts stated there were no state or building codes requiring freeze protection in the circumstances of this case and that the plumbing code (Ex. 25) referenced by Pietropaolo did not apply since it applies only to potable water.  Id., 147, Tr. III, 46.   Roberts also said Westmore was not involved in the design of the heating system at the premises so the ASHRAE standards did not apply to it.  Id., 56–57.   She further testified there was no industry standard requiring the use of liquid freeze protection;  no industry standard requiring Westmore to make a recommendation to the builder-owner about freeze protection, and that the agreement between RML and Westmore did not give enough information to Westmore to allow it to make such a recommendation.   Tr. II, 153, 167–70.

Roberts testified that “normally” the building owner needed to be involved in the decision to add glycol or liquid freeze protection because the owner needed to understand certain downsides to glycol use such as extra maintenance Id., 146–47.   Knowledge that an air handler was located in unconditioned space in the third floor attic was not sufficient information to require Westmore to make a recommendation about liquid freeze protection because Westmore would still need to know the owner's preferences.   Tr. III, 45.

On cross examination Roberts testified it was “prudent” to have freeze protection when a pipe containing water is subject to freezing temperatures;  Id.;   and this “prudent choice” was a sound practice whether potable or non-potable water was involved.  Id., 48.   She testified there are risks in locating an air handler in unconditioned space and agreed that in such cases “more needs to be done.”  Id., 50.   In her deposition, a portion of which was read at trial, Roberts testified that a licensed contractor like Westmore would know of these risks.  Id., 53.

Glen Nadin, the service and installation manager of Westmore for more than two decades, testified that Westmore had the appropriate licenses, personnel and experience to perform the contracted work at 324 Erskine Road. That work consisted of installation of two oil tanks, a boiler and indirect hot water heater and “near boiler” piping.   Tr. I, 177.   There were two heating zones each of which had an air handler.  Id. According to Nadin, “we went no further than the basement.”  Id., 178.   He pointed out the agreement with RML contained no provision about liquid freeze protection.  Id., 196.   Nadin authenticated and explained certain Westmore records and invoices.   The heating system began operating on October 26, 2005 and on November 7, 2005, on a complaint of no heat on the second floor, Westmore personnel identified that a fan in the third floor attic air handler had seized up.  Id., 185;  Ex. 7.³ Nadin visited the premises once to locate where the boiler and water heater should be located and did not know where the air handler was located.   Id. 187–88.   Nadin referred Faccio to Nemiroff.   John Faccio was a former employee of Westmore.   Nadin agreed John Faccio was Westmore's “go to” guy when there was too much work and was very valuable to Westmore when it needed help.  Id., 189.   Nadin testified he agreed to pay Faccio's bill and send the amount as a Westmore invoice, and Westmore expected to get paid for Faccio's work.   It was Nadin's decision to do this, and apparently he did not consider that the Westmore bill might give the impression that Faccio was a subcontractor.  Id., 202–06.

C. Analysis of Plaintiff's Claims.   Having reviewed some of the pertinent evidence, the court will now turn to assess Assurance's negligence claim against Westmore.   Assurance has the burden of proving negligence by a preponderance of the credible evidence admitted at trial.   The essential elements of a negligence claim require proof of the following:  (1) a duty owed by Westmore to Assurance's subrogee RML;  (2) a breach of that duty, (3) that was the actual and proximate cause of, (4) damages.

The court finds that in the circumstances of this case Westmore had a duty to take proper precautions to see that the elements of the heating system did not freeze, including using liquid freeze protection and a duty to at least advise RML of the necessity of some kind of freeze protection for the hydronic coils in the third floor attic.   There was unrebutted and credible testimony by Nemiroff that Westmore and its salesperson who came to the premises to review the building and price the job (this was not Nadin, Tr. III, 60) were told the third floor attic was unconditioned and the salesperson knew where the air handlers were located.   Tr. I, 130, 131–32, 138.   Westmore was responsible for and did the work on October 26 and November 7, 2005 to check the heating system as a whole including filling the water pipes and checking the connections, and getting the system running.   The evidence showed putting liquid freeze protection in the water would have been the task of Westmore in getting the system up and running.   Furthermore, the Westmore employee Eisenhower inspected the air handler in the unheated attic on November 7, 2005.   Tr. I, 185.   Nadin's description of the scope of Westmore's obligations as going no further than the basement is too narrow and factually incorrect.   Its job was to install equipment and make the heating system operable.   An integral part of that system was the air handler and its hydronic coil which created the heated air that was directed to the entire second floor.   The court finds that Westmore had the information concerning the third floor attic air handler being located in unconditioned space and the opportunity to protect against freezing or at least warn of the danger of no freeze protection for the coils.   This information and opportunity to warn or correct created a duty by Westmore to so act.

The conclusion above is supported by the additional facts that Westmore according to Nadin, had the expertise to put liquid freeze protection in the system and the company which replaced Westmore after the flooding did exactly that.   Tr. I, 192 (Nadin);  Id., 163 (Nemiroff).   There was also Nadin's deposition testimony which partially contradicted his trial testimony to the effect that he would “not necessarily” recommend that glycol be put in if he was aware that an air handler was located in unconditioned space.   At deposition, when asked essentially the same question about a water pipe, he testified:  “If it is in an unheated space, I am sure we would recommend they get a plumber to put glycol in.”  Id., 193.

The court's determination that a duty was owed by Westmore to RML is in part informed by the testimony of Pietropaolo and Roberts who rendered opinions on the duty of care and industry standards.   Pietropaolo's testimony, quoted above at page 7 was direct and succinct.   One does not put a system containing water in unheated space subject to freezing conditions and it is incumbent on the persons creating the hydronic loop, including the plumber and the company that installs the boiler and starts up the system, to ascertain whether there is freeze protection in the system.   Roberts was somewhat more circumspect, saying that the building owner needed to be involved in the decision.   To the court this testimony is somewhat equivocal in these circumstances since Nemiroff was readily available for consultation.   Furthermore, Roberts conceded that Westmore was in a position to know of the risks posed by the air handler in the third floor attic, and to know that “more had to be done.”

The court also determines that Faccio was a subcontractor to Westmore and its knowledge of the circumstances was attributable to Westmore.   This conclusion is based on three pieces of unrebutted evidence:  that John Faccio thought he was a subcontractor to Westmore, that he often acted in that role, and that Westmore treated him as a subcontractor by billing his services to RML. Admittedly, there is no evidence that Westmore directly controlled and directed Faccio's work but that is balanced by the evidence that John Faccio was a former employee of, and had been trained by, Westmore, and that Westmore has always considered Faccio's work was first class, implying that direct supervision for this relatively simple project was not required.   Faccio clearly understood the risks of water in unconditioned, unheated spaces subject to freezing temperatures because it insulated those sections of the pipes it installed that were located in the attic space.   Based on the foregoing, the court finds that Westmore's failure to advise RML of the need for freeze protection, or cure the lack of protection was a breach of a duty it owed RML.

The next issue is whether Westmore's breach of duty was the legal and proximate cause of the water damage.   The evidence proved the lack of freeze protection was the cause of the damage;  there was no evidence to the contrary.   As to whether the failure to warn of the need for such protection the analysis involves whether RML would have heeded the freeze protection suggestions if Westmore had made any.   The court finds more probable than not that if Nemiroff had been advised that no freeze protection for the air handler was presently in the plans he would have readily acceded to any advice that freeze protection be added.   This determination is based on the lack of any evidence to rebut Nemiroff's testimony that he expected freeze protection to be included in the first place, it had been included in other projects he supervised, and the lack of any reason to act otherwise.

During the trial Westmore contended, and presented certain evidence for the purpose demonstrating, that Nemiroff was advised freeze protection was needed to protect the hydronic coils in the third floor attic.   Mainly this was done through the testimony of John Faccio which Nemiroff strongly disputed.   The court finds Nemiroff more credible.   There was simply no motivation for Nemiroff to say that the third floor attic would be heated.   The testimony and documentary evidence are quite clear that there was only a partial floor in that area, the roofline was too low for a living area, which would require dormer windows in any event (not in the plans) and there was no insulation on the attic ceiling.   The building plans for the premises are in evidence and show the area to be directly over the master bedroom with a “typical” attic floor below which there is insulation.   Ex. 29, pp. 7, 9. In addition, there was no motivation for Nemiroff to reject glycol which had been used in other buildings he had built.

It is worth noting that the only negligence claim in this case presently is the claim against Westmore.   The court has found this claim to be proven.   Westmore did not claim that RML was comparatively negligent.   Nor did Assurance make any claim against Controlled Temperature who installed the air handler or against Tarzia Plumbing and Heating which was originally worked on the premises.

The court finds that Assurance has not proven its claim for breach of contract.   These claims are based largely on the same facts underlying the negligence claim;  however, the court finds that, while the question is close, the obligation placed on Westmore by the contract were narrower than the common law duty of due care that underlies the negligence claim.   The question is close because of the contract undertaking to perform a “complete and professional installation.”   Nevertheless, the key word is “installation” and the evidence has not established that the installation of the boiler, oil tanks, heater and near boiler piping was not professionally accomplished.   In its post-trial briefing Assurance does not make mention of its warranty claims, and the court deems those claims to be abandoned.

To prevail on is claim that Westmore acted recklessly Assurance must prove by a preponderance of the evidence that Westmore acted in a highly unreasonable way, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent;  to be reckless involves a conscious choice of a course of conduct either knowing about, or having sufficient facts that a reasonable person would understand, the serious danger to others.   Matthieson v. Vanech, 266 Conn. 822, 833–34 (2003).   There are few, if any, pieces of evidence to support a reckless claim in this case.   The evidence that predominates is that Westmore's acts and omissions resulted from inadvertence or oversight.   The reckless claim is dismissed for lack of sufficient proof.

D. Damages. Assurance has claimed damages of $115,909.10 which is described as the amount it paid to repair the losses caused by the water damage.   Westmore contests this amount arguing that invoices introduced by Assurance as evidence only amount to $85,400.29.   The evidence at trial consisted of testimony by Donald Kinnear of McLarens Young International, the adjuster and Exhibits 19 through 23 which were documents prepared by or collected by Kinnear in connection with the adjustment of this claim.   Exhibit 22 (at Bates No. RML Builders 0042) contains Kinnear's determination as to the RML loss which he set at $115,909.10 made up of $18,719.67 paid ServiceMaster which, as described earlier, was called in immediately after the loss was discovered to remove water from the premises, undertake immediate cleaning and restoration, to prevent further damage from mold etc., and $97,187.43 covering damage to the building.   Exhibit 22 (at Bates No ․ 0056) sets forth RML's estimated building damage which came to $99,381.04, including only $1,000 of the ServiceMaster charge.   The RML estimate included copies of relevant invoices respecting repairs and reconstruction at the premises.  Id., (Bates Nos. 0057–0075).   The RML estimate was somewhat higher than the Kinnear estimate.   The basis for Kinnear's building damage estimates are set forth in Exhibit 22 at Bates Nos. 0043–0055.   When that estimate is added to the ServiceMaster bill, the amount is $115,909.10.   While it is true that the invoices submitted by RML do not add up to that figure the amount is supported by the Kinnear calculations and Kinnear stated it was not necessary to support each part of the claim by invoices where he had other data available.   In any event, the damage claim is less than RML's estimate.   It should be noted that Westmore did not challenge either Kinnear's calculations or the ServiceMaster invoice.

E. Conclusion. The court will enter judgment in favor of Assurance and against Westmore on the negligence count and orders the remaining counts dismissed.⁴  Interest on the judgment shall accrue at 6% annually.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

FOOTNOTES

FN1. “Hydronic” is an adjective meaning having to do with a system of heating or cooling by means of forced circulation of liquids through pipes.   Webster's New World College Dictionary (4th ed.2007) p. 700..  FN1. “Hydronic” is an adjective meaning having to do with a system of heating or cooling by means of forced circulation of liquids through pipes.   Webster's New World College Dictionary (4th ed.2007) p. 700.

FN2. While certain documents in the case refer to 304 Erskine Road, the parties agree that the subject premises are located at what is now known as 324 Erskine Road. Transcript (Tr.) 1–24–12, 20–21.   References to “Tr.” are to the transcripts of proceedings in court on January 24, 2012 (Tr. I) January 26, 2012 (Tr. II) and January 27, 2012 (Tr. III)..  FN2. While certain documents in the case refer to 304 Erskine Road, the parties agree that the subject premises are located at what is now known as 324 Erskine Road. Transcript (Tr.) 1–24–12, 20–21.   References to “Tr.” are to the transcripts of proceedings in court on January 24, 2012 (Tr. I) January 26, 2012 (Tr. II) and January 27, 2012 (Tr. III).

FN3. The Westmore employee had the interesting name of Dwight Eisenhower..  FN3. The Westmore employee had the interesting name of Dwight Eisenhower.

FN4. The judgment amount shall be reduced by the amount received by Assurance in settlement of its claim against Faccio.   That amount is presently unknown to the court.   The parties shall submit evidence on this issue (preferably a stipulation) promptly so that a final judgment may enter..  FN4. The judgment amount shall be reduced by the amount received by Assurance in settlement of its claim against Faccio.   That amount is presently unknown to the court.   The parties shall submit evidence on this issue (preferably a stipulation) promptly so that a final judgment may enter.

Adams, Taggart D., J.T.R.