United States District Court, D. Vermont
OPINION AND ORDER
William K. Sessions III District Court Judge
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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