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Deborah George Development, LLC v. Southern Vermont Sprinkler Services, Inc.

United States District Court, D. Vermont

September 23, 2019



          William K. Sessions III District Court Judge

         Plaintiff Deborah George Development, LLC brings this diversity action claiming Defendants are liable for improper installation and implementation of a commercial fire protection pump. Now pending before the Court are Defendants’ motions for summary judgment and motions to strike Plaintiff’s Statement of Disputed Facts. Plaintiff has filed a motion to amend the discovery schedule.

         Plaintiff opposes summary judgment, arguing that the case requires additional discovery. The Court agrees that summary judgment at this juncture would be premature. Accordingly, as set forth more fully below, the motions for summary judgment are denied without prejudice, the motions to strike are denied, and the motion to amend the discovery schedule is granted.

         Factual Background

         Plaintiff is a limited liability company of which Deborah George is the sole member. Ms. George lives in California, and her company’s principal office is located in Pacific Palisades, California. Defendant Southern Vermont Sprinkler Services, Inc. (“SVSS”) is a Vermont corporation with a principal place of business in Brattleboro, Vermont. Defendant R.T. Stearns (“Stearns”) is a New Hampshire corporation with a principal place of business in Portsmouth, New Hampshire.

         Plaintiff owns a shopping center complex in Hinsdale, New Hampshire, known as the Shoppes at George’s Field. The shopping center is protected by a central fire protection system. Water for the system is stored in an approximately 100, 000 gallon tank underneath a below-grade fire pump house. Inside the pump house is a pump with a vertical turbine that extends down into the tank. The fire pump is powered by a motor that is bolted to the pump house’s concrete floor.

         In early 2015, Plaintiff determined that the fire pump needed to be replaced, and in June 2015 contracted with SVSS to install a replacement pump. SVSS in turn contracted with Defendant Stearns to purchase a pump from a manufacturer. Stearns subsequently procured a pump and sold it to SVSS, which then installed the replacement pump in Plaintiff’s pump house. Installation of the replacement pump was completed on December 29, 2015.

         During the installation process, SVSS needed to enlarge the opening in the floor to accommodate the replacement pump. Plaintiff claims that both Stearns and SVSS were aware the hole would need to be enlarged. SVSS enlarged the hole by chiseling the concrete floor. In an effort to catch falling debris, SVSS created a seal by opening an umbrella under the hole, pulling it tight to the opening, and tying it off. SVSS also reportedly used a vacuum cleaner to suck out the debris.

         On June 28, 2016, Stearns’ technicians visited the pump house to perform a field acceptance test of the replacement pump. As part of this test, the technicians connected the new pump to a hose to test water flow. During the flow test, the pump seized up. The pump was then removed and returned to the manufacturer for analysis. Following that analysis, Stearns reported to SVSS that grit and contaminants had degraded the pump, and that the water quality issue needed to be fixed before the pump could be re-installed. The pump was repaired and delivered to SVSS.

         There is a dispute of fact about responsibility for the grit in the water. SVSS claims that Plaintiff was required to have the tank and sump area inspected every five years, and failed to properly maintain the water. Plaintiff alleges that the grit was generated by the chiseling performed by SVSS around the pump access hole. Plaintiff further claims that the grit accumulated near the pump intake line and was ingested into the pump. Plaintiff denies that the accumulation of grit was caused by any lack of either maintenance or inspection of the water tank.

         The Complaint brings four causes of action. Count I, brought against both Defendants, alleges violation of the Vermont Consumer Protection Act. The primary factual allegation in Count I is that Defendants misled Plaintiff by representing that the pump was damaged as a result of Plaintiff’s failure to clean the tank. Count II, also brought against both Defendants, alleges negligence with respect to the testing, servicing, and/or installation of the replacement pump. Count II also alleges breach of a duty to advise Plaintiff that the tank needed to be inspected and cleaned prior to testing. Count III claims that SVSS breached its contract by failing to properly install the new pump. Count IV alleges that SVSS breached the covenant of good faith and fair dealing by concealing the cause of the contaminants in the tank and instead blaming Plaintiff.

         With respect to damages, the Complaint states that Plaintiff has since hired a new contractor to install another fire pump at a cost of approximately $65, 000. Plaintiff has also allegedly expended time and resources to hire engineers to remove the debris and investigate the source of water contamination in the tank. During the time period when there was no pump in place, Plaintiff was reportedly compelled to hire a “fire watch” to supervise and monitor the shopping center property.

         Procedural Background

         Plaintiff filed its Complaint on March 12, 2018. A Stipulated Discovery Order provided that expert witness reports were to be submitted by October 1, 2018, and discovery closed by January 30, 2019.

         Plaintiff submits that it served discovery requests in August 2018, but did not receive Defendants’ responses to those requests until, at the earliest, January 8, 2019. Plaintiff further contends that it could not have been reasonably expected to depose defendants’ witnesses prior to receiving and reviewing those responses.

         On February 1, 2019, within approximately three weeks of sending its discovery responses, Stearns moved for summary judgment. On February 4, 2019, Plaintiff moved to amend the discovery schedule to extend the deadlines for all depositions and the Early Neutral Evaluation session. SVSS moved for summary ...

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