Nationwide Agribusiness Insurance Company v. David Martin Construction Company

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

NATIONWIDE AGRIBUSINESS

:

INSURANCE COMPANY, etc.,

:

Plaintiff,

Case No. 3:18-cv-166

:

v. JUDGE WALTER H. RICE

:

DAVID MARTIN

CONSTRUCTION COMPANY, et

al., :

Defendants.

DECISION AND ENTRY SUSTAINING MOTION FOR SUMMARY JUDGMENT OF

DEFENDANT CUSTOM HEATING & AIR CONDITIONING, INC. (DOC. #50);

SUSTAINING MOTION OF THIRD-PARTY DEFENDANT GEORGE ROBERT

CHARLES, DBA CHARLES PLUMBING TO STRIKE PARAGRAPH 7 OF THE

AFFIDAVIT OF DAVID MARTIN AND OVERRULING MOTION TO STRIKE

REMAINDER OF AFFIDAVIT; AND OVERRULING MOTION FOR SUMMARY

JUDGMENT OF THIRD-PARTY DEFENDANT GEORGE ROBERT CHARLES, DBA

CHARLES PLUMBING (DOC. #63)

Before the Court are two motions for summary judgment: Defendant,

Custom Heating & Air Conditioning, Inc.’s Motion for Summary Judgment

(“Custom Heating’s Motion”), Doc. #50, and Third-Party Defendant, George

Robert Charles, dba Charles Plumbing’s, Motion for Summary Judgment

(“Charles Plumbing’s Motion”), Doc. #63.

Custom Heating’s Motion is not opposed by Plaintiff, Nationwide

Agribusiness Insurance Company (”Plaintiff” or “Nationwide”), Doc. #75. Also,

George Robert Charles, dba Charles Plumbing (“Charles Plumbing”), does not

oppose the motion although he asserts that the testimony of Custom Heating’s

expert witness, Kerry Autio (“Autio”), is inadmissible.1 Doc. #79. Defendant,

Martin Construction Company (“Martin Construction”), has filed a memorandum

in opposition, Doc. #81, and includes as an exhibit an affidavit of David Martin

(“Martin Affidavit”). Doc. #81-1. Custom Heating has filed a reply. Doc. #85.

Nationwide does not oppose Charles Plumbing’s Motion, Doc. #63, and

Custom Heating has not filed a response. Martin Construction, however, has filed

a memorandum opposing the motion, Doc. #82, and attaches the Martin Affidavit,

Doc. #82-1, as an exhibit. Charles Plumbing has filed a reply and requests that the

affidavit be stricken as a “sham affidavit” pursuant to

., 448 F.3d 899, 906 (6th Cir. 2006). Doc. #91.

I. Procedural Issues and Background Facts

Nationwide, the insurer of the home of Kent and Joan Darding, files this suit

for subrogation against Martin Construction and Custom Heating. The Amended

Complaint alleges that an early morning fire occurred at the Darding home on

January 29, 2017, originating at “the location above the basement fireplace and

1Charles has filed a Motion , Doc. #64, seeking to limit the testimony of Autio,

Custom Heating’s expert witness. That motion has been overruled by separate Entry.

directly below the first[-]floor fireplace at the front bottom face of the fireplace

hearth and extension.” Doc.#20, PAGEID#140. Plaintiff alleges that Martin

Construction, the builder of the home, and Custom Heating, a subcontractor,

“fabricated, assembled, supplied, constructed and installed the fireplaces in the

Darding home, including all components, framework and connections necessary

for same.” .

The fire at the Darding’s home occurred in the immediate area of the first-

floor fireplace. The finished fireplace had a black mesh screen, no glass doors, a

gas starter and a stone façade and hearth. Doc. #52, PAGEID#547. The fireplace

was constructed using a prefabricated fireplace that is also called a “fireplace

insert” or “fireplace box.” Doc. #57, PAGEID#1059; Doc. #57-1, PAGEID#1195.

David Martin (“Martin”) of Martin Construction “set the fireplace insert in the

hole.” Doc. # 57, PAGEID# 1058. When Martin Construction installed the first-floor

fireplace insert, the wood framing for the chimney chase way2 was in place. The

flues, chimney cap, stonework for the hearth, the gas line and piping for the gas

starter, however, were not completed.3 ., PAGEID#1058-59. Although the

fireplace was later inspected, Martin Construction does not recall being with an

2 A “chimney chase” or “chimney chase way” is the area or structure around the metal

flue pipes. The chase is usually built with wood or steel studs with an exterior that can

include brick/stone veneer or wood siding or stucco.

3Kuhlman Construction (“Kuhlman”) and David Brannum Construction contracted with

Martin Construction to build the brick and stonework for the chimney and hearth and

wood framing for the chase way, respectively. . at 1058-1059. They are not joined as

parties in this litigation.

inspector when that occurred. Doc. #57, PAGEID##1064-65. He also does not

know if the inspector looked at the construction and placement of the hearth

during any inspection. ., PAGEID#1065.

Custom Heating attached the flues for the first floor and basement

fireplaces from the point of attachment at the firebox, through the top of the

chimney chase. It also put the cap on top of the chimney. Doc. #53, PAGEID#602;

Doc. 53-2, PAGEID#632. Martin Construction supplied the flues to Custom

Heating.

Charles Plumbing, a third-party defendant, installed the gas starters in the

basement and first-floor fireplaces. Doc. #73, PAGEID#2158. The starters were

located inside each firebox, under the log grate. Doc. #52, PAGEID#547. The

firebox and flues were already in place when Charles Plumbing installed the gas

supply line for the gas starters. Doc. #73, PAGEID#2159. To install the gas

starters, Charles Plumbing had to run a propane gas supply line through the right

side of the firebox, where a “knockout piece” was located. ., #73, PAGEID#2158.

Charles Plumbing testified that he worked with Martin to insulate the location

where the gas supply line passed through the firebox. . He states that Martin

used a braising rod that Charles Plumbing loaned him to try to pack the insulation

around the supply pipe. . Martin testified in his deposition that he did not look

to see whether there was insulation in the hole where the propane gas supply line

went through on the side of the fireplace insert. Doc. #57, PAGEID#1068.

During the evening of January 28, 2017, Kent Darding started a fire in the

fireplace. To start the gas for a fire, a gas key valve, located to the right of the

fireplace, was turned. ., PAGEID#546. A match was used to light the gas for the

fire. The gas was turned off once the wood logs began to burn. ., PAGEID#547.

Mr. Darding last observed embers in the fireplace at approximately midnight

when he went to bed. Doc. #52, PAGEID#550. When the smoke alarm sounded at

approximately 2:30 a.m. on January 29, 2017, Mr. Darding investigated and saw

fire not in the fireplace but outside “on the sides and underneath, down in the

lower part.” PAGEID#546. Because this was a fireplace insert, there was a gap

between the stone and the insert. Flames were present on “both sides and

underneath it where the stone stopped.” ., PAGEID#550.

The Amended Complaint alleges that Martin Construction is in breach of a

March 16, 2011, contract it entered into with the Dardings to construct their home.

Doc. #20, PAGEID#154. It further alleges that it is the third-party beneficiary of a

“Subcontract” between Martin Construction and Custom Heating. .,

PAGEID##166-169. The “Subcontract” is dated June 4, 2012, and captioned

“Registered Builder Contract.” . Nationwide also alleges negligence claims

against both Custom Heating and Charles Plumbing.

Martin Construction filed a cross-claim against Custom Heating for

“indemnity, contribution and /or apportionment,” Doc. #24, and a third-party

complaint against Charles Plumbing. Doc. #21. Nationwide likewise asserted

claims, pursuant to Fed. R. Civ. P. 14(a)(3), against Charles Plumbing. Doc. #26.

Each of the five parties have retained expert witnesses to determine the

cause and origin of the fire. Extensive discovery, including depositions of the

experts, has been conducted and is now complete.

II. Standard of Review

Summary judgment must be entered “against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party=s

case, and on which that party will bear the burden of proof at trial.”

, 477 U.S. 317, 322 (1986). The moving party always bears the

initial responsibility of informing the court of the basis for its motion and

identifying those portions of the record which it believes demonstrate the absence

of a genuine issue of material fact. at 323; , 930

F.2d 1150, 1156 (6th Cir. 1991).

“Once the moving party has met its initial burden, the nonmoving party

must present evidence that creates a genuine issue of material fact making it

necessary to resolve the difference at trial.” , 61

F.3d 1241, 1245 (6th Cir. 1995); , 477 U.S.

242, 250 (1986). Once the burden of production has so shifted, the party opposing

summary judgment cannot rest on its pleadings or merely reassert its previous

allegations. It is not sufficient to “simply show that there is some metaphysical

doubt as to the material facts.” ,

475 U.S. 574, 586 (1986). Rule 56 “requires the nonmoving party to go beyond the

[unverified] pleadings” and present some type of evidentiary material in support

of its position. , 477 U.S. at 324. “The plaintiff must present more than a

scintilla of evidence in support of his position; the evidence must be such that a

jury could reasonably find for the plaintiff.”

, 18 F.3d 337, 341 (6th Cir. 1994).

Summary judgment shall be granted “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). “Summary judgment will not lie if the

dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” , 477

U.S. at 248. In determining whether a genuine dispute of material fact exists, a

court must assume as true the evidence of the nonmoving party and draw all

reasonable inferences in favor of that party. at 255. If the parties present

conflicting evidence, a court may not decide which evidence to believe.

Credibility determinations must be left to the fact-finder. 10A Wright, Miller &

Kane, Civil 3d ' 2726 (1998). In determining

whether a genuine dispute of material fact exists, a court need only consider the

materials cited by the parties. Fed. R. Civ. P. 56(c)(3). “A district court is not . . .

obligated to wade through and search the entire record for some specific facts

that might support the nonmoving party=s claim.” ,

889 F.2d 108, 111 (6th Cir. 1989), , 494 U.S. 1091 (1990). If it so

chooses, however, the Court may also consider other materials in the record. Fed.

R. Civ. P. 56(c)(3).

III. Legal Analysis

A. Custom Heating’s Motion for Summary Judgment (Doc. #50)

Custom Heating’s Motion seeks dismissal of Nationwide’s breach of

contract and negligence claims and Martin Construction’s cross-claim. The cross-

claim alleges that if it is found liable for Plaintiff’s claim, it is entitled to “common

law and/or contractual indemnification, contribution[,] and/or apportionment”

from Custom Heating. Its claim for “contractual indemnification” is based on the

Registered Builder Contract. Doc. #24, PAGEID#223.

Plaintiff has filed a response stating that it does not oppose Custom

Heating’s Motion. Doc. #75. Martin Construction, however, argues that Custom

Heating’s Motion should be denied since this “is an unusual battle of experts.”

Doc. #81, PAGEID#2200.

1. Nationwide’s Amended Complaint

Nationwide, as the “subrogated insurer, stands in the shoes of the insured-

subrogor.“ , (2011) 130 Ohio St. 3d

156,162, 956 N.E. 2d 814. (citation omitted). As a subrogated insurer, it has no

greater rights than those that the Dardings had. . Although Plaintiff alleges

both negligence and breach of contract claims, under Ohio law and the facts of

this case, its only claim is for breach of an implied duty to construct a home in a

workmanlike manner based on contract.

., 93 Ohio St. 3d 226, 229, 754 N.E.2d 785, 2001-Ohio-1334 (answering certified

question that the nature of an action by a vendee against builder-vendor for

breach of a contract to build a residence is the breach of an implied

duty to construct the house in a workmanlike manner arising

( )); . (1982), 69 Ohio

St. 2d 376, 433 N.E.2d 147(holding that “[a]n action by a vendee against the

builder-vendor of a residence for damages proximately caused by

failure to construct in a workmanlike manner using ordinary care—a duty imposed

by law— is an action in tort * * *”).

Because the Dardings had no contract with Custom Heating, Nationwide

alleges it is an intended third-party beneficiary of the Registered Builder Contract

between Martin Construction and Custom Heating. To create rights as an

intended third-party beneficiary, Nationwide must establish that the Dardings

were intended and not incidental third-party beneficiaries to the contract.

., 130 Ohio St.3d 196, 200, 957 N.E.2d 3, 6 (Ohio 2011);

, 36 Ohio St.3d 36, 40, 521 N.E.2d 780, 784

(Ohio 1988). To determine if a third person is an intended beneficiary, courts

employ an “intent to benefit” test, , 36 Ohio St.3d at 40, 521 N.E.2d at 784, and

first look to the parties’ expression of intent “in the language of the agreement.”

, 130 Ohio St. 3d at 200, 957 N.E.2d at 7.

The language in the Registered Builder Contract, however, makes no

reference to the Dardings or to any work to be performed at their home.

Moreover, Custom Heating has testified that this contract was not for a specific

job but was “just a general liability contract” for Martin Construction’s “insurance

audit.” Doc. #53, PAGEID#611. Based on this testimony and the Court’s review of

the Registered Builder Contract, Nationwide has failed to establish any expression

of an intent to benefit the Dardings and its contract claim as a third-party

beneficiary fails.

Accordingly, because the Court finds that there is no genuine dispute of a

material fact, Custom Heating’s Motion as to Nationwide’s Amended Complaint is

sustained.

2. Martin Construction’s Cross-claim

Custom Heating also moves for summary judgment on Martin

Construction’s cross-claim. The cross-claim asserts contractual indemnification

based on the Registered Builder Contract, common law indemnification and

contribution.4 In general, indemnification and contribution claims arise only if a

loss is suffered requiring a party to pay. , 74 Ohio App. 3d

608, 600 N.E. 2d 248 (Ohio Ct. App. 1991) (implied right of indemnity does not

accrue until the party seeking indemnity actually suffers a loss although the

4 “Indemnity arises from contract, either express or implied, and is the right of a person,

who has been compelled to pay what another should have paid, to require complete

reimbursement.” ., 32 Ohio St. 3d 238, 240, 513 N.E.2d 253,

256 (Ohio 1987). Contribution in Ohio is governed by statute, R.C. 2307.25. It exists only

in favor of a tortfeasor who has paid more than its proportionate share.

language of a contract controls when dealing with an express contract of

indemnity); , 70 Ohio St. 2d 149152, 435 N.E. 2d 1121

(1982) (right of contribution is inchoate and accrues when a party has paid more

than his share of the joint obligation).

In its motion, Custom Heating does not argue that Martin Construction, the

general contractor, has no legal right to assert a cross-claim against it as a

subcontractor. Instead, it asserts that, based on the expert testimony, there is no

genuine dispute of a material fact that its installation of the flues to the fireplaces

and placement of the cap on top of the chimney caused any damage to the

Darding home, creating any liability for Martin Construction. Accordingly, it

argues that its motion for summary judgment on the cross-claim should be

granted before the issue of liability on Plaintiff’s subrogated claim is resolved.

To determine whether Custom Heating’s Motion on Martin Construction’s

cross-claim should be granted, the Court will review the testimony of the expert

witnesses.

Plaintiff has identified two expert witnesses, Jim Hunter (“Hunter”), a cause

and origin expert, and Nick Leone (“Leone”), an expert in mechanical engineering.

Both opine that the installation of the flue piping and chimney cap was not

deficient and did not contribute to the fire. Doc. #54, PAGEID#676; Doc. #56,

PAGEID#880-881. They instead assert that the fire originated at the first-floor

fireplace and that the cause of the fire was due to improper installation of the

fireplace and a “gap” that existed at the front of the fireplace from missing metal

safety strips. Doc. #54, PAGEID#669; Doc. #56, PAGEID#878. David Jansing,

Charles Plumbing’s expert witness, agrees with Hunter and Leone as to the origin

and cause of the fire. He also opines that the installation of the flue piping and

chimney cap was immaterial to the origin and cause of the fire. Doc. #55,

PAGEID#853. Custom Heating’s expert witness, Autio, identifies “two possible

causes” of the fire: improper installation of the first-floor firebox and/or the

installation of the first-floor gas line. The Court notes that neither of these alleged

“possible causes,” however, implicates Custom Heating. Doc. #46, PAGEID#394.5

Martin Construction opposes Custom Heating’s Motion arguing that “there

is a dispute” whether Custom Heating negligently installed the chimney flue

pipes” on the first-floor fireplace. Doc. #81, PAGEID#2195. It contends that

“circumstantial evidence” of negligence exists based upon Custom Heating’s

installation of the flue piping for the basement fireplace. In making this argument,

Martin Construction relies on the testimony of its expert witness, David Marzola

(“Marzola”).6 ., PAGEID#2199.

Marzola testifies that the “the cause of the fire is undetermined” and that

there are “multiple ignition scenarios.” Doc. #58, PAGEID#1289. He states in his

deposition that there are three improper installation issues that may have caused

5Charles Plumbing challenges the opinions of Custom Heating’s expert witness under

Fed. Evid. R. 702, and ., 509 U.S. 579 (1993).

Doc. #64. This Motion is overruled in a separate decision and entry.

6Because the Martin Affidavit, included as an exhibit in the response of Martin

Construction, does not reference Custom Heating or any of its installation work, it will not

be considered in ruling on Custom Heating’s Motion. Doc. #81-1.

the fire: (1) “improper installation of the fireplace insert” and failure to install

metal safety strips, ., PAGEID##1293,1284; (2) improper installation of “the

fireplace flue and wood framing” resulting in “inadequate clearance to the wood

framing at the location between the wood framing and the flue pipe” .,

PAGEID##1271 and 1273; and (3) improper installation of the propane gas supply

line for the fire starter on the first-floor fireplace insert. ., PAGEID#1293. Marzola

states in his deposition that he cannot reach a conclusion as to any one of the

improper installation issues being “more than 50 percent probable to being the

cause.“ . Specifically, as to Custom Heating’s installation, Marzola testifies that

he could not opine, within a reasonable degree of certainty, that: (1) the first-floor

installation of the flue had any relationship to causing or contribute to causing the

fire or (2) that the installation of the basement flue had any relationship to causing

or contributing to the causing of this fire. Marzola also states that he has no facts

“to suggest that installation of the chimney chase cap had any relationship

whatsoever to cause or contribute to cause the fire.” ., PAGEID#1289.

Ohio law is clear that “the expression of probability is a condition precedent

to the admissibility of expert opinion regarding causation.” , 69

Ohio St.3d 451, 455, 633 N.E.2d 532, 537 (1994). This condition precedent “relates

to the competence of such evidence and not its weight.” . Accordingly, an

expert opinion on causation must be more than a fifty percent likelihood of

causation.

Based on the testimony of the expert witnesses, there is no dispute of a

material fact that Custom Heating’s installation of the flues to the fireplaces and

placement of the cap on top of the chimney caused any damage to the Darding

home creating liability for Martin Construction. Marzola’s testimony does not

establish liability for Custom Heating for either indemnification or contribution,

whether the claim is for contractual indemnification under the Registered Builder

Contract or implied indemnification based on the relationship of the parties,

., 84 Ohio App.3d 554, 563–64, 617 N.E.2d

737, 743 (Ohio Ct. App. 1992)(implied indemnification exists “where a party owes

only secondary legal responsibilities and is passively negligent”), Marzola’s

opinion must be more than a fifty percent likelihood of causation. , at 455.

Similarly, under a claim of contribution, governed by Ohio Rev. Code Ann.

§ 2307.25(A), Martin Construction must establish that Custom Heating is liable for

the damages and that it paid more than its proportionate share of the common

liability. As seen above, Marzola’s testimony does not permit such a conclusion.

Accordingly, Custom Heating’s Motion as to the cross-claim of Martin

Construction (Doc. #50) is sustained.

B. Charles Plumbing Motion for Summary Judgment (Doc. #63)

Charles Plumbing’s Motion argues that there is no “competent evidence

that any alleged act or omission of Charles [Plumbing] caused” the fire. Doc. #63,

PAGEID#1840. Plaintiff does not oppose the motion and contends that “the cause

of the fire” “is not related to any work of Third[-]Party Defendant Charles.” Doc.

#76, PAGEID#2174.7 Martin Construction, however, asserts in its third-party

complaint that Charles Plumbing is liable for “indemnity, contribution[,] and/or

apportionment”8 for any recovery it must pay to Plaintiff, Doc. #21, PAGEID#172.

Martin Construction argues that because the experts assert “multiple causes of

the fire,” genuine issues of material fact remain that preclude summary judgment.

Doc. #82, PAGEID#2206. Its response attaches the Martin Affidavit. Doc. #82-1.

Charles Plumbing contends that the Martin Affidavit should be stricken from

Martin Construction’s response because it is a “sham affidavit.“ , 448

F.3d at 906.

Before analyzing Charles Plumbing’s Motion, the Court will first review the

Martin Affidavit and his prior deposition testimony to determine if is a sham

affidavit or can be considered in deciding Charles Plumbing’s Motion.

7Nationwide states that “the third-party claims asserted by Plaintiff against Third[-]Party

Defendant Charles by way its Rule 14(a)[ ](3) Complaint also fail as a matter of law in the

event that the Motion for Summary Judgment filed by Third[-]Party Defendant Charles is

granted.” ., PAGEID#2175.

8 Martin Construction has admitted that its Registered Builder Contract with Charles

Plumbing, dated February 25, 2012, does not apply to the work at the Darding home. Doc.

#63-1, PAGEID#1859.

1. The Martin Affidavit.

It is well-established that a party cannot defeat a motion for summary

judgment “simply by contradicting his or her own previous sworn statement (by,

say, filing a later affidavit that flatly contradicts that party’s earlier sworn

deposition) without explaining the contradiction or attempting to resolve the

disparity.” ., 526 U.S. 795, 806 (1999);

, 77 Fed. Appx. 826, 834 (6th Cir. 2003). If an affidavit directly

contradicts sworn deposition testimony and there is no “persuasive justification”

for it, it will be stricken. , 448 F.3d 908. Absent a direct contradiction, an

affidavit should not be stricken unless it is an attempt “’to create a sham fact

issue.’” ., (quoting , 796 F.2d 1230, 1237 (10th Cir. 1986)). To

determine whether the affidavit is creating a sham fact issue, a court must

examine a “nonexhaustive list of factors” including

whether the affiant was cross-examined during his earlier testimony,

whether the affiant had access to the pertinent evidence at the time

of his earlier testimony or whether the affidavit was based on newly

discovered evidence, and whether the earlier testimony reflects

confusion [that] the affidavit attempts to explain.

. at 908–09 (quoting , 796 F.2d at 1237).

Charles Plumbing first asserts that Martin testified during his deposition

that after he completed installation of the fireplace and after the hearth had been

installed, he “did not recall seeing a gap.” Doc. #57, PAGEID#1069.

Q. But do you recall seeing a gap of the type and size that is depicted

in the photographs that you just looked at after you had completed

installation of the fireplace insert and after the hearth had been

installed at that location?

A. No.

Q. You recall no gap?

A. No. No, that's not your question. Your question was did I recall

seeing one.

Q. You do not recall seeing a gap?

A. Correct.

Q. You're not saying that there necessarily wasn't a gap, you just don't

recall seeing a gap?

A. Correct.

Doc. #57, PAGEID#1069.

The Martin Affidavit references a “gap” at the fireplace. The relevant

portion of the affidavit states, at paragraph 7, that “[T]here was no gap at the front

of the firebox with exposed combustibles at the time of the completion of

construction.” Doc. #82-1, PAGEID#2215. This paragraph of the affidavit is a direct

contradiction of Martin’s May 10, 2019, deposition testimony and provides no

explanation for this change in testimony. Accordingly, paragraph 7 of the Martin

Affidavit is stricken and the Court will not consider it in deciding Charles

Plumbing’s Motion.

The remainder of the Martin Affidavit does not directly contradict Martin’s

earlier deposition testimony. Moreover, based on a review of Martin’s deposition

testimony, it should not be stricken as a “sham affidavit.” Martin’s deposition

testimony states that there “was a wooden floor system,” Doc. #57, PAGEID#1069,

and that a subcontractor did the stonework for the hearth. Doc. #57,

PAGEID#1058. He also testified that he did not recall if metal safety strips came

with the fireplace insert but, if they did, he would have installed them. .,

PAGEID##1068-1069. Additionally, with respect to Charles Plumbing, Martin’s

deposition states that he did not look to see whether insulation was provided at

the location where this propane gas supply line went through the hole on the side

of the fireplace insert. ., PAGEID#1068. According to his deposition, Martin also

could not recall participating in packing insulation into the outside of the

insert (emphasis added). ., PAGEID#1078.

The Martin Affidavit regarding these topics reads as follows:

4. There was a hearth extension in front of the fireplace which was

made of wood framing, covered in OSB board.

5. At some time after the installation of the firebox, the masonry sub­

contractor installed metal mesh into which he troweled cement. He

covered this with cement board flush with the metal fireplace insert.

Then he covered the hearth extension with stone. There was no OSB

left exposed. (See Hunter &Leone Report, Document 63-2, Page 51 of

63, Page I.D. 1917, and Document 63-2, Page 56 of 63, Page I.D. 1922.)

6. Such materials are not combustible.

8. I did not assist with the installation of the gas line or the gas log

starter.

9. I did not have any role or take part in insulating the hole through

which the gas line was installed. Such was done solely by Charles

Plumbing.

Doc. #82-1, PAGEID#2215.

Although Martin’s deposition testimony shows that he was cross-examined

on some of the topics that appear in paragraphs 4, 5, 6, 8 and 9 of his affidavit, he

was not specifically questioned about them. Martin was “under no obligation to

volunteer information not fairly sought by the questioner.” ., 448 F.3d

at 907. Nor did he respond to the deposition questions in a way that indicated a

total lack of knowledge on these subjects. An affidavit should not reflexively be

stricken since it can fill “a gap left open by the moving party and thus provides the

district court with more information, rather than less, at the crucial summary

judgment stage.” . Paragraphs 4, 5, 6, 8 and 9 of the Martin Affidavit do not

contradict Martin’s prior deposition testimony nor do they create a sham fact

issue. As such, paragraphs 4, 5, 6, 8, and 9 will not be stricken and will be

considered by the Court in ruling on Charles Plumbing’s Motion.

2. Charles Plumbing’s Alleged Failure to Insulate the Hole in the

Fireplace Insert.

Charles Plumbing argues that whether Martin Construction’s cross-claim is

for implied indemnification or contribution,9 it fails since there is no “competent

evidence” showing that there exists a causal connection between the alleged lack

of insulation in the gas supply line running through the right side of the fireplace

insert and the fire. Doc. #63, PAGEID#1840. He asserts that based on the testimony

of all of the expert witnesses, there is no genuine issue of a material fact that his

alleged failure to insulate was the cause of the fire. Because the expert testimony

9 , n. 4, .

differs somewhat from that analyzed in Custom Heating’s Motion, the Court will

review this testimony as it pertains to Charles Plumbing’s Motion.

Although Nationwide’s expert witnesses, Hunter and Leone, opine that the

cause of the fire was the fireplace installation and the failure to install safety

strips, Leone, a mechanical engineer, testifies that an alleged failure to “repack”

the fiberglass insulation in the hole where the gas supply line goes into the

fireplace insert is a “deficiency.” Doc. #54, PAGEID##677 and 672-73; Doc. #56,

PAGEID#882; Doc. #54, PAGEID#669; Doc. #56, PAGEID#878. Leone explains,

however, that this “deficiency” was not a cause of the fire. Doc. #56,

PAGEID#882. Charles Plumbing’s expert witness, David Jansing, is in agreement

with Plaintiff’s experts as to the cause and origin of the fire. Doc. #55,

PAGEID#851.

Martin Construction argues that Charles Plumbing’s Motion cannot be

granted since Marzola, Martin Construction’s expert witness, and Autio, Custom

Heating’s expert witness, opine that the failure to insulate may have caused the

fire. Marzola testifies that the alleged missing insulation at the juncture of the

propane gas supply line into the fireplace insert is one of three possible

“scenarios” of the fire. He opines, however, that none of the three possible

causes are greater than 50 percent. Doc. #58, PAGEID#1289-90. Moreover, this

expert witness testifies that he could not give an opinion that the alleged missing

insulation was more likely than not the cause of the fire. ., PAGEID#1290.

Autio testifies, “within a reasonable degree of certainty,” that there are only

two “possible causes” for the fire: “heat coming out through the hole provided for

the gas line on the right side of the firebox” or embers coming out from the

fireplace and falling through between the juncture of the hearth and the firebox.

Doc.#59, PAGEID#1409. As to the first “possible cause,” Autio explains that heat

from the fireplace traveled through the uninsulated hole resulting in the wood

frame drying out, lowering its ignition temperature and creating pyrolysis, the

drying out of wood. Doc. #59, PAGEID#1840. At some unspecified point in time, it

“potentially will catch fire [and] ignite.” ., PAGEID#1414. He asserts that

pyrolysis could occur in a span of five years, the approximate amount of time that

the Dardings lived in their home, but admits that he did no test to determine the

amount of heat transfer required to create pyrolysis on the framing of the

fireplace. , PAGEID#1438. Autio also testifies in his deposition that he was

skeptical of the second “possible cause” of the fire, embers falling through a gap

between the hearth and the fireplace insert. He states that as between the two

“possible causes,” it was “hard to imagine that many embers coming out and

dropping down” and causing the fire “but I can’t eliminate it.” ., PAGEID#1433.

He testifies that the ignition source for the fire “would probably most likely have

been the heat from the fireplace” and not embers or sparks escaping out of the

uninsulated hole. , PAGEID#1414.

Ohio law is clear that experts are “precluded from engaging in speculation

or conjecture with respect to possible causes.“ , 69 Ohio St.3d at 457.

Moreover, expert opinions must be expressed in terms of probability. . at 455.

Although Marzola and Autio may rebut Plaintiff’s theories with alternative causes,

once offered, the alternative causes “must be expressed in terms of probability

irrespective of whether the proponent of the evidence bears the burden of

persuasion with respect to the issue.” . at 451.

The deposition testimony establishes that Marzola cannot state an opinion

that Charles Plumbing’s alleged failure to insulate is more likely than not the

proximate cause of the fire. Accordingly, Marzola’s expert testimony does not

create a genuine issue of a material fact as to Charles Plumbing’s Motion. The

same, however, cannot be said of Autio’s testimony. Although this expert

repeatedly testifies in his deposition as to two “possible causes,” he also testifies

that the ignition source for the fire “would probably most likely have been the

heat from the fireplace” and not the theory of the gap implicating Martin

Construction. , PAGEID#1414. Because the evidence must be viewed in the

light most favorable to the nonmoving party and credibility judgments should not

be made in deciding motions for summary judgment, Autio’s testimony of

“probably most likely” precludes summary judgment.

IV. Conclusion

For the reasons set forth above, the Motion for Summary Judgment of

Defendant Custom Heating & Air Conditioning, Inc., Doc. #50, is SUSTAINED. The

Motion of Third-Party Defendant George Robert Charles, dba Charles Plumbing, to

Strike paragraph 7 of the affidavit of David Martin, Doc. #82-1, is SUSTAINED and

OVERRULED as to the remainder of the affidavit. The Motion for Summary

Judgment of Third-Party Defendant George Robert Charles, dba Charles

Plumbing, Doc. #63, is OVERRULED.

The following claims remain pending for trial: (1) Plaintiff Nationwide

Agribusiness Insurance Company’s claims as alleged in its Amended Complaint

against Defendant David Martin Construction Company, Doc. #20; (2) Plaintiff

Nationwide’s cross-claims against substituted party William P. Allen,

Administrator of the Estate of George Robert Charles for George Robert Charles

dba Charles Plumbing, Doc. #26; and (3) Defendant David Martin Construction

Company’s Third-Party Complaint against substituted party William P. Allen,

Administrator of the Estate of George Robert Charles for George Robert Charles

dba Charles Plumbing, Doc. #21.

Date: October 26, 2020 b ieliee? sl. Soa (tp - per Judge Rice authorization after his review)

WALTER H. RICE

UNITED STATES DISTRICT JUDGE

23