Travelers Indemnity Co. v. All Phase Protection, Inc.

Filed 2/10/06 Travelers Indemnity Co. v. All Phase Protection, Inc. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Following a restaurant fire, the restaurant's insurer sued a company that had been hired to clean the hood and exhaust system above the restaurant's grills, alleging that poor cleaning led to a buildup of grease and residue that later caused the fire. The trial court granted nonsuit during trial, based in part on the insurer's failure to present expert testimony to establish the standard of care. Earlier, the court had denied the insurer's motion to augment its expert witness list with such an expert. The insurer appeals from the denial of the motion to augment and the grant of the nonsuit. We affirm.

Factual & Procedural Background

In reviewing a trial court order granting nonsuit, we present the evidence in the light most favorable to Travelers, drawing all legitimate inferences in its favor and disregarding conflicting evidence. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118; Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.) Mindful of that focus, we summarize the facts as follows:

Strawberry Joe's, a Mill Valley restaurant, had a front and a back kitchen, each with its own hood and exhaust systems. The hood and exhaust system for the mesquite grill in the front kitchen rose vertically above the grill and passed through the ceiling, then made a 90-degree turn to a horizontal section that was partially in the attic and partly on the roof, then made another 90-degree turn to a final vertical section that was topped with a fan. The restaurant periodically hired service providers to remove the buildup of grease and residue inside the ducts, which was a fire hazard. The ductwork was cleaned by various companies from 1995 to 1999.

In March 2000, All Phase Fire Protection, Inc. (All Phase) cleaned Strawberry Joe's ductwork. On June 10, 2000, a fire started in the roof area of the restaurant. Travelers Indemnity Company, the restaurant's insurer, sued All Phase in subrogation, alleging that All Phase's negligent cleaning of the ductwork caused the fire.

Brian Simmons and Charles McGruder, All Phase employees, cleaned the ductwork at Strawberry Joe's. They used the dry scraping method, which involved putting a degreasing agent on the interior walls of the ducts and scraping the walls with a sharp tool attached to the end of an extendable pole. Simmons testified that steam cleaning is more effective. McGruder stood on the roof and scraped from the top of the ductwork and Simmons stood on the mesquite grill cooking surface and scraped from the bottom.

If certain areas were inaccessible, it was All Phase's practice to make a notation on the invoice that it was not able to clean all areas due to the configuration of the ductwork. The purpose of the notation was to alert the owner about the possibility of a fire. There were no notations on the Strawberry Joe's invoice.

It is more difficult to clean ducts with angles in them. To clean around a 90-degree angle with the dry scraping method, a worker needs a bendable pole. Ronald Coats, All Phase's president a the time of the March 2000 cleaning, did not recall whether the company had bendable poles. Mario Paz, an All Phase employee, had bendable poles, but he took them with him when he left the company before the March 2000 cleaning.

Simmons testified that McGruder â€