Steamfitters Local Union No. 602 v. Erie Ins. Exch.

241 Md.App. 94

209 A.3d 158

STEAMFITTERS LOCAL UNION NO. 602

v.ERIE INSURANCE EXCHANGE, et al.

Steamfitters Local Union No. 602

v.Cincinnati Insurance Co., et al.

No. 1168, 1142, Sept. Term, 2017

Court of Special Appeals of Maryland.

May 30, 2019

Argued by: James S. Liskow (DeCaro, Doran, Siciliano, Gallagher & DeBlasis, LLP, on the brief) Bowie, MD, for Appellant.

Argued by: Mark D. Palmer (Bacan, Thornton & Palmer, LLP, Greenbelt, MD) Lawrence F. Walker (Cozen O'Connor, Philadelphia, PA) (Eric N. Stravitz, Stravitz Law Firm, PC, Lanham, MD, Howard S. Stevens, Meighan G. Burton, Pascale Stevens, LLC, Baltimore, MD. Thomas A. Marsh, Jr., Law Offices of Robert A. Stutman, PC, Fort Washington, PA), on the briefs, for Appellee.

Panel: Berger, Friedman, James R. Eyler (Senior Judge, Specially Assigned), JJ.

Eyler, James R., J.

The litigation that resulted in these consolidated appeals commenced on December 14, 2015, when Gordon Contractors, Inc. ("Gordon") and its insurers, Erie Insurance Exchange ("Erie") and Continental Casualty Company ("Continental"), appellees, filed a complaint in the Circuit Court for Prince George's County, Case No. CAL 15-38293, against Steamfitters Local Union No. 602 ("Steamfitters"), appellant. Gordon, Erie, and Continental alleged that on or about April 6, 2015, a fire that originated in a mulched strip of land on Steamfitters' property caused damage to real and personal property on Gordon's adjacent storage yard. Steamfitters filed a third party complaint against the Heating, Piping and Refrigeration Training Fund ("Training Fund"), seeking contractual indemnification pursuant to an agreement for the use of space, common law indemnification, and contribution.

A second action was commenced on March 4, 2016, when Cincinnati Insurance Company ("Cincinnati") filed a complaint in the Circuit Court for Prince George's County, Case No. CAL 16-07205, as the subrogee of Falco Industries, Inc., C & M Properties, LLC, C & M Properties Delaware, LLC, and Garage Center, LLC (referred to collectively as "Falco"). Cincinnati alleged that the April 6, 2015 fire that started in the mulched strip of land on Steamfitters' property, spread to Falco's property and caused substantial damage to real and personal property. Steamfitters filed a third party complaint against the Training Fund in that case as well.

In April 2016, the two cases were consolidated. For ease of reference, we shall refer to Gordon, Erie, Continental, and Cincinnati collectively as either the plaintiffs or appellees.

Steamfitters and the Training Fund filed motions for summary judgment. After a hearing, the court denied Steamfitters' motion for summary judgment and granted summary judgment in favor of the Training Fund. The cases against Steamfitters were tried before a jury from July 17 to 20, 2017. The jury returned verdicts in favor of the plaintiffs. Damages were awarded in favor of Erie a/s/o Gordon in the amount of $ 1,039,176.67; in favor of Gordon, individually, in the amount of $ 111,125.38; in favor of Continental a/s/o Gordon in the amount of $ 72,338.48; and in favor of Cincinnati a/s/o Falco in the amount of $ 119,909.10.¹ This timely appeal followed.

QUESTIONS PRESENTED

Appellant presents the following questions for our consideration:

I. Do commercial landowners owe their commercial neighbors a duty of care to prevent third parties, with whom they have no special relationship or vicarious responsibility, from discarding cigarettes in mulch based solely on notice of prior smoking activities on the property as evidenced by old cigarette butts?

II. In asserting that a commercial landowner violated a duty of care to prevent third parties from discarding cigarettes in mulch does a Plaintiff need to provide the fact finder with expert testimony as to reasonable, standard and effective measures to prevent same?

III. Was Defendant prejudiced by the circuit court's charging the jury with a spoliation instruction where the only evidence of such spoliated evidence's existence is testimony that the party requesting such instruction referred to the evidence as useless and declined to copy same and where a request to hold evidence which specifically identified persons present at the time of the occurrence was later received and further, where the evidence was only "unbelievably close" to the area of interest and did not directly show same?

IV. Was it proper for the circuit court to enter summary judgment on an indemnity agreement as it did not expressly call for one party to indemnify another for its own negligence where the contention was that the negligence was that of third parties whose activities were related to the indemnitor and where there were questions of fact as to how the parties acted after a term of years specified in the contract expired?

In addition, appellees request that the appeal be dismissed because Steamfitters failed to include certain agreed-upon items in the joint record extract in violation of Md. Rule 8-501. Alternatively, they request that Steamfitters be ordered to pay the costs incurred in preparing an appendix.

For the reasons set forth below, we shall deny the motion to dismiss, affirm the circuit court's judgments, and order that the costs to be paid by appellant pursuant to our mandate include those costs incurred by appellees in preparing the appendix.

FACTUAL BACKGROUND

At all times relevant to the instant case, Gordon was the owner of a storage yard, located at 8722 Ashwood Drive in Capitol Heights, that it used to store materials for its construction business. Falco occupied a commercial warehouse that was adjacent to one side of Gordon's property and Steamfitters owned property adjacent to the other side. Gordon and Steamfitters' properties were separated by a chain link fence with security slats. On Steamfitters' side of the fence, there was a strip of land covered with mulch, a parking lot abutting it, and a building used as a union hall. The Training Fund operated an apprentice school in the union hall pursuant to a written agreement with Steamfitters for the use of space.

Gordon and Falco alleged that the April 6, 2015 fire started when an unknown person discarded a lit cigarette into the mulch bed on Steamfitters' side of the fence. Gordon and Falco did not allege that Steamfitters was vicariously liable or that it had a duty to control the unknown person, but proceeded instead on the theory that Steamfitters, as the property owner, failed to use reasonable care to prevent the foreseeable risk of fire spreading to neighboring properties.

Steamfitters' business manager and corporate designee, Daniel Loveless, explained that, generally, most of the apprentices went directly from their jobs to the Training Fund's apprentice school and arrived between 2:30 and 5 p.m. Over time, he observed that, prior to the start of classes, apprentices napped, gossiped, minded their own business, and/or drank beer. Mr. Loveless was responsible for property maintenance. Although no employee was specifically assigned the task of cleaning up trash along the fence line between Steamfitters and Gordon's properties, Mr. Loveless had done so 2 to 3 times prior to the fire. According to Mr. Loveless, the mulch had not been replaced in a while, and the ground was bare in spots. Mr. Loveless was not sure if he had seen cigarette butts in the mulch prior to the fire, but after the fire, he did observe cigarette butts in the mulch. He acknowledged that there were more butts "than there should have been," and that, "[i]n the right situation," a carelessly discarded cigarette could start a fire. He was "pretty sure" that Steamfitters did not have a smoking policy and that smoking was allowed outside of the union building. It was undisputed that Steamfitters did not issue any guidelines, communications, policies, or recommendations regarding smoking and that there were no signs prohibiting smoking on Steamfitters' property.

John Mastripolito, a corporate representative of Steamfitters, walked through the mulched area 8 times between February 2015 and the date of the fire. He testified that he did not see any cigarette butts in the mulch, but acknowledged that he had bad vision, wore glasses, and would not be concerned even if there were 100 cigarette butts in the mulch because he was "just not into cigarette butts[.]"

Wayne Crosby, an acting lieutenant and fire investigator assigned to the Prince George's County Fire Marshal's Office, was the lead investigator for the fire. He testified as an expert in fire origin, cause, growth, and spread. Lieutenant Crosby concluded that the fire originated along the fence line between the Steamfitters and Gordon properties and that constant wind on the day of the fire, with gusts up to 40 miles per hour, kept the fire low and pushed it down the fence line toward a dumpster, where it grew. He opined that embers from the mulch were blown by the wind into Gordon's construction yard where they ignited combustible foam insulation and caused the fire to grow. The foam insulation liquified and ran down the parking lot to one side of the Falco property, burning two fire trucks along the way.

According to Lieutenant Crosby, the only possible ignition source was a cigarette. A very large number of cigarette butts were found in the mulch on Steamfitters' side of the fence, and Lieutenant Crosby opined that the fire started when someone flicked a cigarette into the mulch near the fence or when the wind blew a cigarette butt up against the fence. He acknowledged that the combustible foam insulation on Gordon's property was stored too close to the fence line, in violation of certain code provisions, but concluded that because of the strong winds, it did not matter where that material was stored.

Vehicles parked on Gordon's lot sustained damage in the fire. Lieutenant Crosby noted that the vehicles were burned from left to right and that there was no damage on one side of them. If the fire had started in one of the...