Polansky v. Vail Homes, Inc.

SARAH POLANSKY, Administratrix of the Estate of Doris Polansky, deceased,and TIMOTHY POLANSKY, an adult individual, Plaintiffs, v. VAIL HOMES, INC., a Maryland limited liability company, TIMOTHY MEERSCHAERT,an adult individual, CHRISTOPHER MEERSCHAERT, an adult individual,and MOUTAINEER LOG AND SIDING COMPANY, INC., a Maryland corporation, Defendants.

Civil Action No. 13-296

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

May 10, 2016

Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

This lawsuit arises from Defendant Mountaineer Log and Siding Company, Inc.'s, ("Mountaineer"), sale of a log cabin kit to Doris and Timothy Polansky, (the "Polanskys"), and subsequent construction of same by Defendant Vail Homes, Inc., ("Vail Homes" or "Vail"), and its operators Defendants Timothy Meerschaert and Christopher Meerschaert. During the pendency of this action, Doris Polansky died. (Docket No. 167). Subsequently, the caption was amended and Sarah Polansky was added as a Plaintiff as administratrix of her mother's estate. (Docket No. 175). Plaintiffs are Timothy Polansky and Sarah Polansky (collectively "Plaintiffs"). Pertinent here are Plaintiffs' negligence and loss of consortium claims against Mountaineer at Counts III and IV of their Third Amended Complaint.¹ Presently before theCourt are Mountaineer's Motion for Partial Summary Judgment, challenging the sufficiency of the Plaintiffs' evidence as to those counts and Plaintiffs' opposition thereto.² (Docket Nos. 171, 178). The Motion has been fully briefed and the Court held oral argument from counsel at a Motion Hearing on February 25, 2016. (Docket No. 193).

After careful consideration of the parties' positions and having evaluated all of the evidence in light of the appropriate standard governing motions for summary judgment, and for the following reasons, Mountaineer's Partial Motion for Summary Judgment has been DENIED. (Docket No. 195).³

II. BACKGROUND

The following facts are undisputed, except as indicated, and are pertinent to the instant motion.⁴ The Polanskys and Mountaineer entered into an agreement to purchase a log cabin home package.⁵ (Docket No. 173 at ¶ 3). Mountaineer supplied the Polanskys with a list of local builders near Deep Creek, Maryland, and Mountaineer did not select, hire, or guarantee theperformance of any of the builders. (Docket No. 173 at ¶ 6). On November 30, 2009, the Polanskys signed an acknowledgement that they were purchasing a materials only package and that the Polanskys were responsible for investigating, researching, and hiring a builder themselves. (Docket No. 173 at ¶ 8). Mountaineer provided building plans and/or blueprints, a construction manual, the logs, and building materials. (Docket No. 173 at ¶ 9).

The Polanskys initially selected Robert Metts to build their home, using the materials and plans purchased from Mountaineer. (Docket No. 180 at ¶ 35). But, Mr. Polansky testified that Jack Barnhart ("Barnhart"), an agent of Mountaineer, told them that Metts lacked the competence, experience, and ability to build and construct log homes. (Docket No. 180 at ¶¶ 39, 40). Subsequently, they decided against using Metts because he doubled the price due to his belief that the home was a non-kit home.⁶ (Docket No. 173 at ¶¶ 10-11).

The Polanskys were then left to find another builder and they continued to communicate with Barnhart concerning same. According to Mr. Polansky, Barnhart recommended that they use Vail for the construction of the home. (Docket No. 180 at ¶ 36). Meerschaert Construction, Vail's predecessor company, was on the initial list of contractors provided by Mountaineer to the Polanskys. (Docket No. 174-8). Barnhart admitted that he provided Mr. Polansky with Meerschaert Construction's phone number. (Deposition of Barnhart, Docket No. 174-2 at 96:9-10). Mr. Polansky explained that Barnhart showed them completed homes that he represented were built by Vail. (Docket No. 180 at ¶ 41). Barnhart received a referral fee of approximately $2,000 from Vail, which was not disclosed to the Polanskys. (Docket No. 180 at ¶ 38; Deposition of Christopher Meerschaert, Docket No. 181-3 at 123:17- 126:13; Docket No. 181-1 at ¶ 10). The Polanskys later learned that the completed homes shown by Barnhart were notactually built by Vail and were not representative of Vail's experience building such homes. (Docket No. 180 at ¶ 40; Docket No. 181-1 at ¶ 8).

Ultimately, the Polanskys, upon the recommendation of Barnhart, entered into a contract with Vail Homes on or about April 5, 2010, to build their home, and shortly thereafter, Vail Homes began the construction of the residence. (Docket No. 173 at ¶¶ 12, 16, 17; Docket No. 180 at ¶ 36). The Polanskys understood that Vail Homes would perform all of the construction work. (Docket No. 173 at ¶ 18). The Polanskys became dissatisfied with the construction quality during the building process. (Docket No. 173 at ¶ 19).⁷ Despite these problems, the Polanskys moved into the home at some point after April of 2010.⁸

One of the prominent construction problems in the newly built log home was that alleged faulty design and/or construction led to water pooling on the deck. (Docket No. 173 at ¶ 26). According to Plaintiff's construction expert, Frederick R. Steding,⁹ the gutters, as designed, were too small to effectively catch water. (Docket No. 155-5 at 2; Docket No. 173 at ¶¶ 24, 25). Mr. Steding also opines that the shingles were improperly installed covering a portion of the gutters preventing water from entering and that there were no gaps inserted between the deck boards. These problems collectively caused water to pool over time, accumulate, and enter the house per Steding. (Docket No. 173 at ¶¶ 22, 23).

It had been raining heavily the evening of April 23, 2011. (Docket No. 186 at ¶ 1). That night, Mrs. Polansky walked outside onto the deck, slipped, and fell on water that had formed on the "ponded" area of the deck. (Docket No. 173 at ¶ 27; Docket No. 76 at ¶ 18). Due to her fall,she suffered a fractured left ankle. (Docket No. 173 at ¶ 28). Mr. Polansky did not see her fall as he was inside the house watching television. (Docket No. 173 at ¶¶ 29, 30). Yet, he heard his wife's cries for help and immediately came to her aid. (Docket No. 180 at ¶ 42). He observed that she was visibly shaken. She told him that she had fallen after slipping on the wet surface of the deck. (Docket No. 180 at ¶ 42). While outside, he saw the condition of the deck where water had pooled. (Docket No. 181-2 at ¶¶ 4-6).

Mrs. Polansky required medical attention in the days following. While she was being treated, Mrs. Polansky stated to several individuals, including Gregory B. Christiansen, M.D., that she was injured due to her slip and fall on the wet surface of her home's deck. (Docket No. 180 at ¶ 43). Her statements to the medical providers were memorialized in the treaters' medical reports. (Docket No. 155-1 at 1; Docket No. 181-4 at 4).

As noted, there were no eye witnesses who observed the slip and fall accident. Counsel for Mountaineer requested to depose Mrs. Polansky; however, she never testified due to her multiple medical conditions, (Docket No. 173 at ¶ 33), before her death.

III. PROCEDURAL HISTORY

Mountaineer filed its Motion for Partial Summary Judgment and Brief in Support on October 30, 2015. (Docket Nos. 171, 172). Plaintiffs countered with their Response in Opposition, Brief in Support, and Responsive Concise Statement of Material Facts and Additional Statements on December 15, 2015. (Docket Nos. 178, 179, 180). Mountaineer submitted its Reply Brief and Concise Statement of Additional Material Facts on January 12, 2016. (Docket Nos. 185, 186). Mountaineer failed to respond to the additional allegations raised by Plaintiffs in Docket No. 180. Plaintiffs filed their Sur-Reply Brief in Opposition and Counter Concise Statement of Facts on January 22, 2016. (Docket Nos. 190, 191). The Court held ahearing and oral argument on February 25, 2016. (Docket No. 193). Subsequently, Mountaineer filed its Supplemental Appendix to its Motion for Partial Summary Judgment on February 26, 2016. (Docket No. 194). As no further submissions have been made, the Motion is fully briefed and ripe for disposition.

IV. LEGAL STANDARD

It is well-established that summary judgment is appropriately entered "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). "A fact is material if it might affect the outcome of the suit under the governing law." Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d Cir. 2013) (citation omitted). In deciding a motion for summary judgment, the Court's function is not to weigh the evidence, to determine the truth of the matter, or to evaluate credibility. See Montone v. City of Jersey City, et al., 709 F.3d 181 (3d Cir. 2013). Rather, the Court is only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the non-moving party. Id. In evaluating the evidence, the Court must interpret the facts in the light most favorable to the non-moving party, and draw all reasonable inferences in favor of the non-movant. Watson v. Abington Twp., 478 F. 3d 144, 147 (3d Cir. 2007).

Under Local Rule 56(E) ("L.Cv.R.56(E)"), undisputed facts "will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." W.D. Pa. L.Cv.R. 56(E) (2013). In prior cases, this Court has strictly applied L.Cv.R. 56(C) and L.Cv.R. 56(E). See Janokowski v. Demand, 2008 WL 1901347, at *1 (W.D. Pa. Apr. 25, 2008) (defendant's statement of material facts were deemed admitted for the purpose of summary judgment because of the plaintiff's violation of Local Rule 56.1(c)); see also GNC Franchising LLC v. Kahn, 2008WL 612749, at *1 (W.D. Pa....