The opinion of the court was delivered by: Brotman, District Judge.
OPINION REGARDING PLAINTIFF UNIVERSAL UNDERWRITERS INSURANCE
GROUP'S MOTION FOR SUMMARY JUDGMENT
Presently before this Court, pursuant to 28 U.S.C. § 1332
(diversity of citizenship), is Plaintiff Universal Underwriters Insurance
Group's Motion for Summary Judgment regarding its products liability and
implied warranty claims against Defendant Public Service Electric & Gas
Company ("PSE & G").
I. FACTUAL & PROCEDURAL BACKGROUND
On April 8, 1997 a fire occurred which destroyed a building located in
Woodbridge, New Jersey. As a result the Plaintiff was required to pay out
over 2.5 million dollars to its insureds Jay & Jay Associates (the owner
of the building), Hertz Corp. (a sublessor of the building) and
Woodbridge Power Sports (the building's tenant). (See Pl.'s Br. at 1)
At about 6:30 p.m. on the evening of April 8th, employees of Woodbridge
Power Sports ("WPS") allegedly smelled smoke and traced its origin to the
main service panel located in the building's basement. (See Pl.'s Br. at
2) In response the owner of the building, Thomas Orlando, allegedly
attempted to disconnect all electricity into the building by accessing a
disconnect device located "after the main service panel." (See id.) The
building's service manager purportedly then called the fire department,
as well as WPS' private electrician. (See id.)*fn1
Shortly thereafter WPS' electrician, Peter Tucker, arrived at the
scene. Mr. Tucker allegedly inspected the basement and attempted to
address the problem, but was ordered by the fire department to vacate the
premises. (See Pl.'s Br. at 2) According to Plaintiff, the fire department
informed Tucker that no one would be allowed to enter the building until
PSE & G arrived. (See id.) At 7:29 p.m. the fire department notified PSE
& G about the incident. (See id.)
Asserting that the damage resulting from the fire would have been
prevented had PSE & G properly trained its employees and implemented
appropriate response procedures, the Plaintiff filed suit against PSE & G
in this Court in April of 1998. The lawsuit alleges counts of
negligence, strict liability and breach of warranty against the
Defendant. (See generally Compl.) The Plaintiff now brings this motion
for summary judgment, claiming that it is entitled to judgment as a
matter of law with respect to its strict liability and implied warranty
II. STANDARD FOR SUMMARY JUDGMENT
The standard for granting summary judgment is a stringent but
surmountable one. That is, summary judgment is appropriate only when the
materials of record "show that there is no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c); Serbin v. Bora Corp., 96 F.3d 66, 69 n. 2 (3d Cir.
1996). In deciding whether there is a disputed issue of material fact,
the court must grant all reasonable inferences from the evidence in favor
of the non-moving party. Serbin, 96 F.3d at 69 n. 2. The threshold
inquiry is whether there are "any genuine factual issues that properly
can be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
Supreme Court decisions mandate that a motion for summary judgment must
be granted unless the party opposing the motion "provides evidence `such
that a reasonable jury could return a verdict for the non-moving party.'"
Lawrence v. National Westminster Bank of New Jersey, 98 F.3d 61, 65 (3d
Cir. 1996) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505).
Moreover, once the moving party has carried its burden of establishing
the absence of a genuine issue of material fact, "its opponent must do
more than simply show that there is some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the
non-moving party must "by affidavits or by depositions and admissions on
file `mak[e] a showing sufficient to establish . . . [that a genuine
issue of material fact exists as to each] . . . element essential to that
party's case.'" Equimark Commercial Fin. Co. v. C.I.T. Fin. Servs. Corp.,
812 F.2d 141, 144 (3d Cir. 1987) (declaring that a non-movant may not
"rest upon mere allegations, general denials, or . . . vague
statements"). Thus, if the non-movant's evidence is merely "colorable" or
is "not significantly probative," the court may grant summary judgment.
Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.
a) Plaintiff's Product Liability Claim
In count two of the complaint, Plaintiff asserts a strict products
liability claim against PSE & G. (See Compl. at Count Two) Actions
grounded in the principles of products liability law have been codified
by the legislature in New Jersey's Products Liability Act ("NJPLA"),
which applies to "any claim or action brought by a claimant for harm
caused by a product, irrespective of the theory underlying the claim[.]"
See N.J. Stat. Ann. § 2A:58C-1(b)(3)(West 1987)(emphasis added). New
Jersey courts interpreting the Act have consistently held that, as a
general rule, common law actions for negligence and breach of implied
warranty are subsumed by the NJPLA when the claims asserted fall within
the act's purview. See e.g., Potwora v. Grip, 319 N.J. Super. 386,
725 A.2d 697, 704 (1999); Tirrell v. Navistar Int'l, Inc.,
248 N.J. Super. 390, 591 A.2d
643, 647-48 (1991); Walus v. Pfizer, Inc., 812 F. Supp. 41, 43 (D.N.J.
1993); see also Repola v. ...