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Great Northern Ins. Co. v. AM Appliance Group

Superior Court of New Jersey, Appellate Division

May 28, 2013

GREAT NORTHERN INSURANCE COMPANY as subrogee of DAVID and SHARON BAGATELLI, Plaintiff-Appellant,
v.
AM APPLIANCE GROUP, ASKO CYLINDA, ASKO APPLIANCES, INC., D'ELIA INC., CARL SCHAEDEL AND CO., INC., and THE HOME DEPOT, INC., Defendants, and GOLDMAN ASSOCIATES, OBERG & LINDQUIST, GA SERVICE CORP., R&S BUILDERS, INC., and LOMBARDI ELECTRICAL CONTRACTING COMPANY, INC., Defendants-Respondents, and GOLDMAN ASSOCIATES and GA SERVICE CORP., Third-Party Plaintiffs,
v.
THE HOME DEPOT, INC., Third-Party Defendant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 12, 2012.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1193-08.

Daly, Lamastra & Cunningham, attorneys for appellant (John E. Lamastra, on the brief).

Leary, Bride, Tinker & Moran, attorneys for respondents Goldman Associates and GA Service Corp. (David J. Dering, of counsel and on the brief).

Law Offices of William E. Staehle, attorneys for respondent Oberg & Lindquist (Jeffrey W. Mazzola, on the brief).

Prutting & Lombardi, attorneys for respondent R&S Builders, Inc. (George A. Prutting, Jr., on the brief).

Law Offices of Stephen E. Gertler, attorneys for respondent Lombardi Electrical Contracting Company, Inc. (Mr. Gertler, on the brief).

Before Judges Axelrad, Sapp-Peterson and Haas.

PER CURIAM.

Plaintiff, Great Northern Insurance Company (Great Northern), appeals from orders entered granting summary judgment dismissing its subrogation complaint against R&S Builders (R&S), Oberg & Lindquist, Lombardi Electrical Contracting Company, Inc. (Lombardi), Goldman Associates[1] and GA Service Corp. (GA) (collectively "defendants"). We affirm.

The facts, viewed most favorably towards plaintiff, Brill v. Guardian Life Insurance Company of North America, 142 N.J. 520, 524 (1995), disclose that Great Northern issued an insurance policy to David and Sharon Bagatelle[2] insuring their newly-constructed home, which they moved into in 2001. A fire erupted in the home on July 27, 2004 that originated from the dryer, an ASKO T-700 model. The home was completely destroyed as a result of the fire. Great Northern paid the Bagatelles over one million dollars to settle their claim and then unsuccessfully sought reimbursement from a number of parties, including R&S, the builder; Lombardi, the electrical contractor, Oberg & Lindquist, from whom the Bagatelles purchased the dryer, and GA, who serviced the dryer. It then commenced a subrogation action against defendants.

According to the architectural plans, the washer and dryer were to be installed on the second floor of the home, with the dryer being placed closest to the outside wall, and the washer installed furthest from the outside wall. In addition, the plans called for installation of a 230-volt electrical outlet for the dryer. However, when installed, the architect's specifications were not followed, as the washing machine was placed next to the outside wall, and the dryer furthest from the outside wall.

Eight months after the Bagatelles moved into the home, Ralph Lombardi, Lombardi's principal, conducted a post-construction walkthrough. During this walkthrough, he noticed the dryer vent "was popped out the back of the house" and lint was stuck in the vent. He told Sharon she needed to "do something with that." The dryer was serviced in November 2003, after Sharon reported that it was very loud. A GA technician replaced the bearing and belt. The nature of the repairs performed would have required the technician to remove the vent tubing and back panel. Following this repair, the Bagatelles heard no further loud noises until July 27, 2004. On that day, Sharon called for service, and while waiting for the repair person to arrive, she saw a glow coming from underneath the dryer. The fire that ensued destroyed the home.

In her deposition, Sharon testified she "personally always clean[ed] the lint filter after every load[, ]" she knew the exhaust hose went to the outside of the house, and that "it [could] get clogged at the flap on the outside of the house" but she also knew how to "troubleshoot that." She explained she would look to determine whether steam was coming out because that's a "give-away." In addition, she stated "[d]ryers generally do not heat up if they're clogged going to the outside. The clothes will come out damp. So that also has to be cleaned on a probably yearly basis." She never, however, personally cleaned ...


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