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AmGuard Insurance Co. v. Fire Systems of Michigan, Inc.

United States District Court, E.D. Michigan, Southern Division

July 31, 2019

AMGUARD INSURANCE COMPANY, Plaintiff,
v.
FIRE SYSTEMS OF MICHIGAN, INC. Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE

          ROBERT H. CLELAND, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff AmGuard Insurance Company is a subrogee of the South Lyon Hotel (“the Hotel”). On June 23, 2016, the Hotel sustained extensive damage from a fire. Plaintiff brings one claim of negligence against Defendant Fire Systems of Michigan, Inc. (“FSM”), [1] which installed and maintained a chemical fire suppression system in the kitchen of the Hotel's restaurant. Defendant filed a motion seeking summary judgment which also challenges the testimony of Plaintiff's fire investigation expert, Thomas Kropf. Defendant preemptively argues that this is not a case of a “battle of the experts” but rather that Plaintiff cannot establish a “prima facie case of negligence” because Mr. Kropf did not properly determine the cause of the fire. (ECF No. 47, PageID 485.) Defendant further moves to strike the affidavit of Mr. Kropf through a separate motion. (ECF No. 52.) Plaintiff responds that this case is “a prime example of a ‘battle of the experts'” (ECF No. 49, PageID 1213) and argues that Mr. Kropf's opinions are admissible and create a triable issue of fact. The motions have been fully briefed, and the court determines that a hearing is unnecessary. See E.D. Mich. 7.1(f)(2). For the reasons stated below, the court finds that the opinions of the parties' expert witnesses are not inadmissible and do create a triable issue of fact as to legal and factual causation. Accordingly, the court will deny Defendant's motions.

         II. BACKGROUND [2]

         A fire occurred at the South Lyon Hotel on June 23, 2016. That much the parties do not dispute. The remaining facts in this case are largely contested. The parties' expert witnesses each present their own theories regarding the origin location of the fire, the cause of the fire, and the failure of the Hotel kitchen's Ansulex fire suppression system, which Defendant's installed in 2004 (ECF No. 47, PageID 488), to deter the spread of the flames.

         According to Plaintiff's fire investigation expert, Mr. Kropf, the fire started when the pilot light on the charbroiler grill in the Hotel's kitchen ignited crumbs in the grill's tray. (ECF No. 47-15, PageID 684.) The fire next ignited oils and grease surrounding the grill, spread to the exhaust ducts, and continued to burn throughout the Hotel. Plaintiff's fire suppression system expert, James Valentine, opined that the fire spread so drastically because the cylinders of Ansulex chemical suppressant positioned above the charbroiler failed to discharge the full amount of suppressant needed to stop the flames. Mr. Valentine further opined that the Ansulex cylinders were improperly installed and improperly tightened, causing the impellent gas to escape the pressurized cylinders and preventing the cylinders from fully dispersing the proper amount of chemical suppressant during the fire. These issues were compounded, according to Mr. Valentine, by the fact that the nozzles on three of the cylinders were entirely clogged. (ECF No. 47-15, PageID 684; ECF No. 47-17, PageID 719-20.)

         Defendant's fire origin expert, David Stayer, classified the fire as “undetermined” but presented three hypotheses as to the cause: (1) electrical issues in the second-floor office, (2) pyrolysis[3] of the structural wood near the kitchen ventilation ducts, and (3) ignition of food debris and oil by the charbroiler pilot light. (ECF No. 47, PageID 495.) Mr. Stayer disregarded the third hypothesis-which is the conclusion of Plaintiff's expert witness-because he determined that the pilot light was off at the time of the fire. Id. Defendant's fire suppression system expert, Nathaniel Lee, concluded that Defendant's fire suppression system dispersed the proper amount of Ansulex chemical suppressant. (ECF No. 47-20, PageID 1090.) Mr. Lee also opined that several nozzles on the Ansulex cylinders above the charbroiler were not properly positioned because Hotel management moved appliances in the kitchen nine months before the fire and ignored Defendant's requests to reconfigure the suppression system to account for these changes. (Id.)

         Defendant's Motion for Summary judgment exclusively focuses on the opinions of Plaintiff's fire investigation expert, Mr. Kropf. (ECF No. 47, PageID 499.) Defendant does not challenge the qualifications of Mr. Kropf or even the treatises relied on by Mr. Kropf in forming his opinions. (ECF No. 47, PageID 500.) Instead, Defendant argues that Mr. Kropf's opinions are inadmissible as expert testimony pursuant to Federal Rule of Evidence 702 and the standard for expert testimony announced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) because Mr. Kropf “failed to test his own theory or rule of alternate hypotheses.” (ECF No. 47, PageID 485, 499-500.) Defendant also moves to strike Mr. Kropf's affidavit (ECF No. 49-3) on the grounds that it contradicts Mr. Kropf's earlier deposition testimony. (ECF No. 52, PageID 1405.)

         III. STANDARD

         Summary judgment is appropriate when there exists no dispute of material fact and the moving party demonstrates entitlement to judgment as a matter of law. Fed.R.Civ.P. 56(a). In evaluating a motion for summary judgment, the court considers all evidence, and all reasonable inferences flowing therefrom, in the light most favorable to the nonmoving party. Moran v. Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015). The court may not make credibility determinations or weigh the evidence presented in support or opposition to a motion for summary judgment-only the finder of fact can make such determinations. Laster v. City of Kalamazoo, 746 F.3d 714, 726 (6th Cir. 2014).

         The movant has the initial burden of showing-pointing out-the absence of a genuine dispute as to any material fact; i.e., “an absence of evidence to support the nonmoving party's case.” See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986). The burden then shifts to the nonmoving party to set forth enough admissible evidence to raise a genuine issue of material fact for trial. Laster, 746 F.3d at 726 (citing Celotex Corp., 477 U.S. at 324). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248; Williams v. AT&T Mobility Servs. LLC, 847 F.3d 384, 391 (6th Cir. 2017). Not all factual disputes are material. A fact is “material” for purposes of summary judgment when proof of that fact would establish or refute an essential element of the claim “and would affect the application of the governing law to the rights of the parties.” Rachells v. Cingular Wireless Employee Servs., LLC, 732 F.3d 652, 660 (6th Cir. 2013).

         IV. DISCUSSION

         Plaintiff asserts one count of negligence against Defendant related to Defendant's alleged defective installation and maintenance of the fire suppression system in the Hotel's kitchen. Plaintiff asserts that the fire suppression system failed to perform as intended and allowed the fire to unabatedly spread throughout the Hotel. (ECF No. 1, PageID 4-5.) The elements of negligence under Michigan law are “(i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damage.” Ray v. Swager, 903 N.W.2d 366, 371 (Mich. 2017) (citing Moning v. Alfono, 254 N.W.2d 759 (Mich. 1977)). Proximate cause “involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.” Id. (quoting Skinner v. Square D. Co., 516 N.W.2d 475 (Mich. 1994)).

         Here, Defendant's motion solely focuses on the causation elements and Mr. Kropf's testimony to support those elements. Defendant argues that Mr. Kropf's opinions regarding the fire's origin and cause are inadmissible because he did not test his hypothesis, disprove other hypotheses about the fire's origin and cause, and subject his findings to peer review.[4 ...


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