TRUCK INSURANCE EXCHANGE, Petitioner, Counter Defendant and Appellee,
DON O'MAILIA, dba LOLO PLUMBING & HEATING, Respondent, Counter Plaintiff and Appellant, and Diamond Plumbing & Heating, Inc. Respondent and Appellant.
Submitted on Briefs: January 7, 2015
District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-13-1031B Honorable Robert B Allison, Presiding Judge
For Appellant: David J. Steele II, Geiszler & Froines, PC, Missoula, Montana Perry J. Schneider, Dylan M. McFarland, Milodragovich, Dale & Steinbrenner, P.C., Missoula, Montana (Attorneys for Diamond Plumbing & Heating, Inc.)
For Appellee: Mark S. Williams, James D. Johnson, Williams Law Firm, P.C., Missoula, Montana
LAURIE MCKINNON JUSTICE
¶1 Don O'Mailia d/b/a Lolo Plumbing & Heating (O'Mailia) appeals from orders of the Eleventh Judicial District Court, Flathead County, granting summary judgment in favor of Truck Insurance Exchange (TIE) and dismissing O'Mailia's counterclaims with prejudice. We affirm.
¶2 O'Mailia presents the following issues for review:
1. Whether the District Court erred when it granted summary judgment in favor of TIE on the basis that no property damage occurred during the policy period.
2. Whether the District Court violated O'Mailia's right to due process when it dismissed his counterclaims with prejudice after granting summary judgment in favor of TIE.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 In 2007, O'Mailia was hired to install a water heater on the premises of the newly-constructed Famous Dave's barbecue restaurant in Kalispell. At that time, O'Mailia was covered by a commercial general liability policy provided by TIE, which he held from July 10, 2006 until he elected to terminate the coverage on November 29, 2009. On March 12, 2010, about three years after the water heater was installed, Famous Dave's opening manager Michael Schindler noticed a burning smell in the mechanical room. Schindler called the Kalispell Fire Department. Firefighters turned off the water heater and advised Schindler to have a plumber look at it. Schindler called Diamond Plumbing & Heating (Diamond). Diamond employee Clarke Dickey replaced the combustion air fan assembly, but reportedly did not conduct a further examination of the water heater.
¶4 The next day, Schindler smelled burning and called Diamond again. Diamond employee Rex Denison examined the water heater and apparently concluded it was working fine, but could not meet hot water demand, possibly because the heat exchanger needed cleaning or because the water heater was too small. Denison measured the external temperature of the exhaust vent at 486 degrees Fahrenheit. He reportedly did not examine or clean the heat exchanger. About an hour after Denison left, a fire broke out and Famous Dave's closing manager, Joey DeLao, called the fire department.
¶5 Multiple experts later examined the premises and determined that the cause of the fire was related to installation and maintenance of the water heater. Frank Hagan prepared a report in which he concluded that the water heater exhaust vent pipe had reached excessive temperatures and ignited nearby wood framing and roofing materials. Hagan concluded the excessive exhaust vent temperatures were caused by a fouled heat exchanger. Hagan observed that the water heater was set to a low output temperature and a low-temperature bypass was not installed, which could have caused excessive soot build-up on the heat exchanger. In a later deposition, Hagan stated that he believed the wood framing near the water heater was likely "pyrolizing" as a result of exposure to excessive temperatures. Hagan explained pyrolysis as follows:
Well, what happens with wood is that when you expose wood-pyrolizing is a result of the material or the wood degrading due to heat exposure. And what happens when you pyrolize wood, you heat the wood to temperatures below what it would normally ignite at, and over a period of time the wood degrades and ...