Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Travelers Property Casualty Company of America v. All-South Subcontractors, Inc.

United States District Court, S.D. Alabama, Southern Division

April 13, 2018




         This matter comes before the Court on Plaintiff's Motion for Partial Summary Judgment (doc. 40). The Motion has been briefed and is now ripe for disposition.[1]

         I. Background.[2]

         A. Nature of the Case.

         On the evening of May 2, 2016, a heavy rainstorm swept through southwestern Alabama. Such weather events are not uncommon in this area; indeed, an oft-cited statistic crowns Mobile, Alabama as the rainiest city in the United States. Nonetheless, this weather event was significant. During the storm, the roof of a warehouse building owned by non-party Thompson Tractor Company in Spanish Fort, Alabama collapsed. The roof collapse damaged not only the warehouse facility, but also the Caterpillar tractor parts inventory stored inside. Thompson's insurer, plaintiff Travelers Property Casualty Company of America, investigated the loss and ultimately paid out over $1 million in insurance benefits to Thompson.

         As subrogee under the applicable insurance policy, Travelers, standing in the shoes of its insured, filed suit against defendant All-South Subcontractors, Inc., to recover the insurance proceeds paid to Thompson. Travelers' theory is that All-South is responsible for Thompson's roof collapse because All-South had performed re-roofing services on that building in 2009-2010, and had responded to a service call from Thompson when the roof leaked in 2014. Travelers' Complaint (doc. 1) pleads the following claims against All-South: (i) negligence and negligence per se, alleging that All-South failed to exercise reasonable care in performing work on the Thompson roof (Count I); (ii) negligent misrepresentation, alleging that All-South falsely represented to Thompson the work that it would perform, as well as the standard and end results of that work (Count II); (iii) breach of contract, alleging that All-South breached its contract with Thompson by failing to inspect, maintain, repair and/or replace the subject roof as agreed (Count III); and (iv) breach of express and implied warranties, alleging that Thompson breached a 15-year express warranty on the subject roof, breached the promises and warranties contained in its advertising materials, and breached implied warranties of fitness and merchantability under Alabama law (Count IV).

         Following the close of discovery, Travelers filed a Motion for Partial Summary Judgment seeking the following discrete rulings on issues pertaining to liability and causation: (i) the International Plumbing Code applied to All-South's work on the Thompson roof; (ii) in 2010, All-South breached its duty of care by failing to install scuppers as required by the International Plumbing Code; (iii) in 2014, All-South breached its duty of care (whether or not the International Plumbing Code applied) by failing to advise Thompson of the need for scuppers; and (iv) the lack of scuppers was a proximate cause of the roof collapse. For its part, All-South maintains that genuine issues of material fact remain on each of these issues, such that plaintiff's Motion for Partial Summary Judgment should be denied.

         B. The Warehouse Roof and the 2010 Re-Roofing Project.

         As of 2009, Thompson's warehouse had a metal roof that sloped downward to a three-foot parapet wall, whose function was to keep water from flowing off the side of the building. (Armstrong Dep. (doc. 43, Exh. B), at 23-24.) During storms, rainwater would flow down the roof and become trapped against the parapet wall, forming a large puddle. (Id. at 24, 84.) To manage the buildup of rainwater, the base of the wall was equipped with six evenly-spaced downspouts that drained water from an internal gutter situated along the bottom of the inside of the parapet wall. (Id. at 24; doc. 43, Exh. D, at #5.) The drainage system consisted of the gutter and downspouts. (Baxter Dep. (doc. 43, Exh. E), at 14.)

         All-South Subcontractors is a roofing company, and is not licensed to practice engineering or architecture. (Doc. 53, Exh. BB, at 5.) On November 10, 2009, All-South submitted a bid proposal to perform roofing work on Thompson's warehouse. The scope of work identified in the proposal included the following: (i) “Install a Firestone 45 mil white TPO fully adhered roof system;” (ii) “Line the internal gutters with membrane;” and (iii) “Provide the owner with a manufacturer's fifteen (15) year labor and material warranty.” (Doc. 43, Exh. A.) Also embedded in All-South's proposal was a statement reading, “We exclude any electrical, plumbing, mechanical or HVAC work.” (Id.)[3] Thompson hired All-South to perform the warehouse re-roofing job; however, neither Thompson nor All-South consulted with professional engineers or architects in connection with this project. (Doc. 53, Exh. BB, at 5.) All-South performed the re-roofing work at Thompson in early 2010. In summary, the work performed consisted of the following: “The Firestone 45 mil TPO membrane roof was installed over insulation which had been placed on top of the metal roof and on top of fiber board which was mechanically secured by screws. The TPO material was then welded to the fiber board.” (Doc. 43, Exh. D, at #3.)[4]

         During this job, All-South discovered that the internal gutter on the Thompson roof “was full of trash, debris, pine straw, weeds growing in it, air conditioner filters, what have you.” (Goldman Dep. (doc. 48, Exh. J), at 47.) All-South further determined that it would be necessary to install drain inserts in the downspouts because the TPO membrane that All-South was installing could not be welded to the gutter material. (Id. at 48, 50-51, 80.) On that basis, All-South elected to fill in the internal gutter with solid material in order to lay the TPO membrane on top of it. (Doc. 43, Exh. D, at #6.) All-South also fabricated and installed six drain inserts, one for each of the six existing downspouts. (Id. at #8, #11.) The drain inserts were sized and fabricated based upon existing dimensions of galvanized metal collars to which each downspout was attached. (Id. at #8-#9.) The inserts were fabricated from a TPO clad metal, and the roof was welded to them. (Goldman Dep., at 80.) All-South acknowledges that it “minimally decreased the size of the downspouts by putting the inserts in there.” (Stewart Dep. Vol. I, at 57.) All-South also welded two straps of TPO material to the roof membrane above each drain screen in order to hold the screen in place. (Doc. 43, Exh. D, at #12.) The screens were intended to prevent debris from entering the downspouts. All-South also installed five crickets underneath the surface of the membrane “in between the drains to make the water flow.” (Id. at #7; Goldman Dep., at 49.)[5] The scope of work to which All-South and Thompson had agreed made no mention of the crickets, the in-fill of the gutter, or the fabrication and installation of drainage inserts. (Barter Dep. (doc. 43, Exh. F), at 111.)

         Of central importance to Travelers' Motion for Partial Summary Judgment, a scupper is defined as “[a]n opening in a wall or parapet that allows water to drain from a roof.” (Doc. 43, Exh. J, at § 1502.) Scuppers are essentially “holes in the wall” that act as “overflow devices, ” so that when “[w]ater builds up on the roof to a certain level, … it exits through the scuppers.” (Barter Dep., at 56.) In the context of Thompson's warehouse roof, the idea is that scuppers (i.e., holes above the roof line in the parapet wall) could have acted as secondary drainage, a sort of failsafe system, if for any reason the existing drains, drain inserts and downspouts along the base of the parapet wall were to become clogged and standing water were to rise above the roofline against the wall. The parapet wall on the roof of the Thompson warehouse did not have scuppers prior to All-South's re-roofing work in January 2010. (Id. at 57.)[6] Thus, the only way for rainwater to drain from the roof was through the six drain inserts being installed by All-South. (Doc. 43, Exh. D at #23.) All-South did not install scuppers in the parapet wall in conjunction with the January 2010 project. (Barter Dep., at 57; doc. 11, at #14.)

         C. The March 2014 Rain Event.

         On March 28, 2014, Thompson called All-South to report a significant roof leak at the warehouse. (Doc. 43, Exh. L.) An All-South crew visited Thompson's facility and inspected the roof, where their notes confirm they discovered “all six drains 100% plugged, ” “water over a foot deep at rear wall, ” and that water had “overflowed vent stacks, ” thereby entering the warehouse. (Id.) Based on these conditions, All-South's crew “waded out, ” “removed debris, ” and “cleaned debris out” of the clogged drains. (Id.) When All-South employees cleaned out the drains, “a tremendous amount of water” gushed out through the downspouts to the ground below. (Robinson Dep. (doc. 43, Exh. G), at 22.) The drains were found to contain “[a] lot of debris, a lot of vegetation had been pulled out, there was dirt, just numerous things.” (Id. at 25.) At the conclusion of this service call, All-South field representatives met with Thompson's manager, reported their findings that all six rooftop drains had been clogged, and offered Thompson a maintenance contract, pursuant to which All-South would come to the facility every two or three months, check the drains and clean them. (Id. at 33.) Thompson declined the contract, explaining that it would simply have Thompson employees perform those tasks in-house. (Id.)

         All-South's operations manager, Bennie Goldman, reviewed the report and photographs taken by the All-South crew responding to the March 2014 service call. Goldman was aware that an All-South employee inspecting the roof that day had been “up to his knees in water” and that the drains on the Thompson roof “collected debris and stuff.” (Goldman Dep., at 109, 111.) Within a few days, All-South's president, John Stewart, learned of the Thompson service call and the presence of approximately 12 inches of water backed up against the parapet wall. (Stewart Dep. Vol. II (doc. 43, Exh. N), at 48-49.) Stewart viewed this circumstance as a “big deal” about which people in the All-South office were “upset” and “bothered.” (Id. at 49.) According to Stewart, All-South identified the problem in March 2014 as “[t]he roof drains being clogged, ” and All-South advised Thompson of the problem of clogged roof drains and the concomitant need to keep them clean and free of obstructions, such that “the owner was well notified of the problem.” (Id. at 51-52.) However, All-South neither recommended that Thompson install scuppers in the parapet wall, nor indicated that such a secondary drainage system was necessary or appropriate. (Id. at 53.)[7] There is also no indication in the record that Thompson solicited input or recommendations from All-South as to whether any corrective action was available other than periodically cleaning out the roof drains. Indeed, neither side identifies evidence that Thompson ever inquired of All-South or anyone else about the availability of secondary drainage devices to prevent rainwater from ponding at the base of the parapet wall during heavy storms if the drains became clogged.

         D. The Roof Collapse.

         On May 2, 2016, during another heavy rainstorm, the southwest corner of the roof (the area where the sloping roof met the parapet wall) of Thompson's warehouse collapsed. (Lyles Dep. (doc. 43, Exh. M), at 30, 32.) All-South's position is that, as a matter of “common sense, ” “we do not feel that it would have collapsed the way it did without more of the drains being blocked.” (Stewart Dep. Vol. I (doc. 43, Exh. C), at 82.) A theory espoused by Bennie Goldman (former operations manager at All-South) is that Thompson “failed to maintain the - the roofs and clean the debris and stuff off the drains, and the water backed up, and the structure couldn't handle it.” (Goldman Dep., at 109.)

         All-South expert Marc Barter offered several opinions concerning the cause of the roof collapse. For purposes of its Rule 56 Motion, Travelers accepts Barter's opinions as correct. Barter testified as follows: “The roof collapsed due to the accumulation of water on the roof.” (Barter Dep., at 299.) As to the presence of corroded structural steel columns in the building, Barter opined that this may have been a contributing factor because “the column in the weakened state would have given it less resistance when a collapse was to occur.” (Id.) Barter also testified to his opinion that if there were free-flowing scuppers set at an appropriate height off the roof, it is “probably the case” that the roof would not have caved in. (Id. at 219-20.)[8]

         II. Summary Judgment Standard.

         Summary judgment should be granted only “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.” Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) (citation omitted).

         III. Analysis.

         As indicated supra, Travelers focuses its Motion for Partial Summary Judgment on four narrowly defined topics, to-wit: (i) whether the International Plumbing Code applied to the All-South's re-roofing work on the Thompson building in January 2010; (ii) whether All-South breached a duty of care in 2010 by failing to install scuppers under the International Plumbing Code; (iii) whether All-South breached a duty of care in 2014 by failing to advise Thompson of the need for scuppers; and (iv) whether the absence of scuppers was a proximate cause of the May 2016 roof collapse. Each will be addressed in turn.

         A. Whether the International Plumbing Code Applied to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.