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Summary judgment is available remedy in subrogation
action where carrier unable to establish superior equities by Fredrick A. Hagen On October 28, 2003, Van De Poel & Levy won a summary judgment, successfully defending a subrogation lawsuit against our client, a sheet rock subcontractor. Through subrogation, an insurance company can attempt to recover money paid on a loss by bringing any claims that the insured would have against any party found responsible for the loss. Safeco Insurance Company brought a subrogation action against our client and other contractors to recover nearly $2 million – the amount that Safeco paid under a homeowner’s policy for damages cause by a fire. The fire started in the wall behind a fireplace facade in the insured home. Safeco alleged that framing and sheet rock contractors who participated in a remodel of the fireplace facade were responsible for the fire. Safeco’s fire experts testified that the fire occurred because wood framing was installed too close to the iron shell of an existing gas fireplace insert. The wood framing members were reduced to charcoal through a process called pyrolysis. After several years, the carbonized wood framing became increasingly vulnerable to combustion at the heat levels produced by the iron shell of the gas fireplace, leading to the fire. Safeco alleged that the framing and sheet rock contractors were liable for the fire damages through the doctrine of negligence per se, under which a defendant can be found negligent for causing damages through a violation of a law or regulation. Safeco alleged that the contractors violated local building code regulations by failing to obtain a building permit for the fireplace remodel and inspections from the local building department. Safeco asserted that the failure to obtain permits or inspections led to the fire because, had our client, a sheet rock subcontractor, obtained a permit for the work or called for inspections, the local building department would have stopped the work and inspected the framing. The building inspector would then have asked to see the gas fireplace insert manual, which would indicate that the wood framing was installed too close to the iron shell of the gas fireplace insert. The building inspector would have then instructed the framing to be reinstalled, averting the fire. We filed a motion for summary judgment asking the trial court to dismiss the case because Safeco could not establish superior equities, one of eight essential elements an insurance company must meet in order to bring a subrogration action. We argued that the homeowner had an independent duty to obtain a permit from the local building department. In fact, a local building department official stated that the homeowner would be held responsible for failing to obtain a building permit, not the contractor. Thus, the homeowner was at best equally responsible for violation of the building codes that allegedly led to the fire. The trial court agreed that Safeco could not establish superior equities and dismissed the case before trial, saving our client from the risks of trial and a potential $2 million judgment. This case is currently on appeal.
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