Metropolitan News-Enterprise


Wednesday, April 6, 2011


Page 1


Contractor Held Liable for Calabasas Home Fire Caused by Workers

C.A. Panel Clarifies Effect of Subrogation in Comparative Negligence Case


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal yesterday upheld a judgment against a hardwood flooring contractor for causing a fire which damaged a Calabasas home.

Div. Three concluded that sufficient evidence supported the jury’s determination that cigarette butts carelessly discarded by workers from a subcontractor hired by Conejo Hardwoods started the blaze in the garage of a property owned by James and Rita Garbell.

The panel also upheld the apportionment of damages by Los Angeles Superior Court Judge Paul Gutman, since deceased. The court explained that the insurance payment to the Garbells was properly deducted from their total personal property loss after comparative fault was determined.

A 35-gallon trashcan which the workers at the Garbell house used to store their materials and flooring for installation was the undisputed point of origin of the fire. The workers were employees of Krowpman Flooring and Tile, which the jury found was Congejo’s agent.

Smoking Admitted

One of the workers, Bryan Robertson, testified that he and another worker smoked at the job site. Robertson claimed that they would sit on the edge of his truck parked on the street during breaks, then extinguish their cigarettes in a glass Snapple bottle. This bottle, he said, would either be left in his truck or thrown into the trash at the end of the work day.

Although the Garbells said they saw the workers smoking, neither of them said they saw what the workers did with their discarded cigarettes.

The fire started after the workers had left for the day and while the Garbells were not at home.

An investigator hired to investigate the fire scene testified that workers had told him they “either threw the glass container with the cigarette butts in it into this trash can with sawdust and wood shavings and trash or they dumped the cigarette butts out of the…Snapple bottle, into the trash can.” He said he was able to eliminate all other causes of the fire except a discarded cigarette or spontaneous combustion, but could not determine which had been the actual cause.

Comparative Fault

The jury determined the total amount of personal property loss from the fire was $822,483, but found Conejo was only liable for 55 percent of this amount because the Garbells had also been negligent and responsible for 45 percent of the fault.

Gutman then subtracted the $424,050 paid by the Garbells’ insurer from Conejo’s share of the damages, leaving a net award to the Garbells of $28,315.

Writing for the appellate court, Justice Richard D. Aldrich said the fire investigator’s testimony was sufficient to establish causation since he “ruled out by a process of elimination all causes of the fire except two,” and relied on the admission from

workers that they may have dumped cigarette materials into the trash in forming his opinion that a cigarette was to blame.

“We recognize that [the investigator] did not testify that the cigarettes belonged to one of the workers, nor could he as there was no trace of cigarettes at the fire’s point of origin,” Aldrich said, but reasoned “this particular link in the causation chain, that is, whose cigarette caused the fire, did not require expert testimony.”

The justice posited that “reasonable inferences based upon timing and proximity” of the fire to the departure of the workers from the job site, as well as the absence of any glass shards at the point of origin, could have been drawn by the jury, establishing the element of causation to support the negligence finding.

Subrogation Explained

Aldrich also rejected the Garbells’ contention that they were entitled to the insurance payment regardless of their fault, and that only their uninsured loss should have been subject to comparative fault.

“The Garbells’ argument fundamentally misunderstands their insurer’s subrogation rights and the judgment,” Aldrich said.

“When the insured is only partially compensated by the insurer for a loss, as was the case here, the subrogation doctrine results in two or more parties having a right of action for recovery of damages based upon the underlying negligence,” so the insurer had a subrogation right to recover its payment of $424,050 from Conejo, and the Garbells had a right to recover for their uninsured loss, he explained.

Aldrich said there was no error in the damages calculation, but partial reversal was necessary since the judgment exceeded Conejo’s statutory settlement offer. The court reversed the portion of the judgment denying costs to the Garbells and awarding costs to Conejo after the date the offer to compromise was served on the Garbells.

Stanley P. Lieber of Lieber Williams & Labin represented the Garbells while Robert L. Kaufman and John J. Stumreiter of Brown, Brown & Klass represented Conejo.

The case is Garbell v. Conejo Hardwoods, Inc., 11 S.O.S. 1761.


Copyright 2011, Metropolitan News Company