On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2893-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges A. A. Rodríguez, Collester and C. L. Miniman.
These are back-to-back appeals consolidated for purposes of argument and this opinion. In A-2466-06T1 plaintiff Charles Saitta, II, appeals from the dismissal of his tort action pursuant to a directed verdict by Judge Kathryn A. Brock in favor of defendants Franklin Development Co. (Franklin), Zinsser & Co., Inc. (Zinsser), Distributek, LLC (Distributek), and Norsemen Company Mechanical and Electrical Contractors, Inc. (Norsemen), based upon the trial judge's finding that plaintiff had failed to establish the proximate cause of the electrical fire which caused his injuries.
Correspondingly, in A-3662-06T1 third-party defendant Merchants Insurance Company (Merchants) appeals from Judge Brock's ruling in a declaratory judgment action that a settlement agreement obligating it to share in both the defense and indemnification of third-party plaintiff Distributek was valid and enforceable based on the court's finding that Merchants agreed without reservation to pay one-third of any settlement or verdict entered against Distributek in the underlying action.
Initially we address plaintiff Saitta's tort action. Throughout 2002, Saitta was employed as an electrician by Globus Electric, Inc. (Globus) to perform extensive electrical renovation services at a commercial storage facility located in Franklin Township owned by Franklin and leased by Zinsser. Plaintiff, who had over twenty-four years of experience as an electrician, worked on both the main service box that powered the entire facility, as well as various subpanels. While at the site, he reported to Jim Reynolds, an employee of defendant Distributek, the company hired by Zinsser to oversee the project and who engaged Globus to do the work.
Plaintiff was not the only electrical contractor to perform work on the facility's main service box. Between May and July 18, 2002, Victor Holmlund, an electrician employed by defendant Norsemen, installed two 600-amp subpanels. These subpanels supplied power to forklift battery chargers. Holmlund connected these sub panels to the main service box using 350 McM gauge cables. Holmlund said that after initially cutting the cables down to an appropriate size, he and an assistant bent the cables so that the proper connections could be made within the box. Holmlund described the bending of these heavy gauge cables as a "two-man job" requiring a great deal of brute force. After this was completed, the battery chargers were put into use.
On October 1, 2002, Barry Wilbur, Franklin Township's electrical subcode official, performed a site inspection at the facility. He observed the battery chargers in use and noted that the plans did not reflect the installation of battery chargers. Moreover, Norsemen was not identified as the contractor performing the work, and no permits had been issued for this work. Additionally, under the Uniform Construction Code, these chargers should not have been energized until they had undergone final inspection. Wilbur discussed these matters with Saitta and issued a notice of violation, dated October 21, 2002, to Franklin and Distributek.
Although Distributek maintained that the chargers were on the original plans and that they had merely failed to file a notice that Norsemen was performing this work, a new permit application was made on November 4, 2002. A responding permit was not issued until April 2003.
In early November 2002, Saitta discovered that the cables for the battery charger subpanels had been erroneously connected by Holmlund to the 400-amp breaker on the upper right side of the main service box rather than to the 600-amp breaker on the upper left side of the box. Because Saitta needed to tie into the 400-amp breaker in order to complete the next part of his job, he approached Reynolds and explained the problem. Reynolds said he immediately contacted Norsemen and asked them to look into the matter. Holmlund, purportedly an owner of Norsemen, denied ever hearing from Reynolds that he had connected the cables to the wrong breaker.
According to Saitta, a Norsemen electrician returned to the site on November 11 or 12 and switched the cables from the 400-amp breaker to the 600-amp breaker. Saitta said that he knew it was a Norsemen electrician because of the logo on both the truck and the shirt of the worker. He explained that this electrician only had to move six of the eight cables because the other two were ground cables situated behind the other cables and attached to the ground.
Saitta claimed that the electrician had only small hand tools with him and made no attempt to shorten the cables even though there was limited space in the box. The cables were in close proximity to the energized bus bars, and it was apparent that there was going to be excess cable. Saitta recalled that the electrician simply disconnected the cables from the right circuit and reconnected them to the left circuit. Saitta described the work by the Norsemen electrician as "sloppy." He said that when cables are too long, they can be pushed into spaces where they do not belong and too close to the bus bars, and that excessive bending can damage the cable insulation. After this work was completed, Saitta noticed that the interior cover which protected the cables and the energy bus bars no longer fit properly over the cables inside. Saitta believed this constituted a code violation and brought it to Reynolds's attention.
On November 15, 2002, Saitta opened the exterior cover of the main panel and prepared to install a ground cable in connection with the tie-in to the 400-amp circuit breaker. As he began his work, Saitta found that it was necessary to unfix a ground cable that had been installed by the Norsemen electrician to an unnecessarily large lug. When he loosened the lug, the ground cable inside dropped approximately one inch and Saitta heard the sound of shooting sparks. As he pulled his hand out, the panel exploded, setting fire to his shirt, which resulted in second and third-degree burns to eleven percent of his body, including his head, neck, right shoulder and upper arm.
At trial Saitta identified the Norsemen cables as well as his own cables in a photo of the main service box taken after the fire. He pointed out that there were other cables in the decades-old box, some of which were twenty to thirty years old. He testified that he did not really know what had caused the fire, he believed that when he loosened the lug and the Norsemen ground cable moved, the upper portion of that cable must have struck something above so that either it or some other cable struck a bus bar. He could not see the cables above since they were covered by the interior cover. Saitta admitted that while the Norsemen cables were bent, he did not observe any insulation failure and conceded that the ill-fitting interior cover did not cause the accident.
Saitta insisted that he did not act inappropriately in working on the box while it was energized since the bus bars were under the interior cover. He said the only way to completely de-energize the box was to have PSE&G turn off the power at the street. He acknowledged that this had been done once before during the job to enable him to safely work outside on the transformer, but not on the main service box.
Saitta believed that Norsemen's work had been properly permitted and inspected prior to the day of the accident. He also noted that the battery chargers were being used that day. He further claimed that he asked Reynolds about Norsemen's work following Wilbur's inspection on October 1, 2002 and that Reynolds told him that the "work was permitted" but that the paperwork "hadn't come back as of yet."
Wilbur denied that he inspected the battery chargers on October 1, 2002, although he acknowledged that he could have shut the chargers down if he felt they were unsafe. Wilbur further stated that he could not tell from the photos taken after the fire whether Norsemen's work was code compliant.
Saitta's expert was Daryl Ebersole, an electrical engineer. He opined to a reasonable degree of electrical engineering probability that the fire occurred because an improperly installed and compromised Norsemen ground cable came into contact with one or more of the electrified bus bars. He explained that the large copper cables installed by Norsemen extended downward from an opening in the top of the main panel box left of center above the three electrified bus bars. He stated ...