Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

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UNITED STATES DISTRICT COURT DISTRICT OF CONNCTICUT

GLENS FALLS INSURCE COMPANY:
a/s/o HAROLD and LAURN HEINZ Plaintiff
against

CIVIL ACTION NO. 303 CV 1015 (DJS)

COMMAND FORCE SECURTY
SYSTEMS, INC.

SEPTEMBER 21, 2004

Defendant

PLAINTIFF'S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

INTRODUCTION
This is a negligence (subrogation) action arising from a fire which occurred on

July 23, 2001 at 34 Wildwood Drive, Wilton, Connecticut - the home of Harold and
Lauren Heinz ("premises"). Prior to the fire the defendant, Command Force Security

Systems, Inc. ("Command Force") had installed a centrally monitored fire detection
system at the premises. Centrally monitored means that in the event of a fire the fire
detection system would notify a central monitoring station, which would then notify the

local fire department. In other words, even if no one were home at the time of a fire, the

centrally monitored system would notify the fire department. That the fire detection
system was centrally monitored is a significant fact for this case because the centrally

monitored system should have - but did not - provided adequate protection to the
premises in the event of a fire when no one was home. Indeed, the defendant was
informed prior to the installation of the fire detection system that it was the homeowner's

insurance company, the plaintiff in this case, for Harold and Lauren Heinz which
requested the centrally monitored system.

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The defendant has moved for summary judgment and that motion must be denied
because there are numerous genuine issues of material fact regarding the adequacy of the

fire detection system, the factors that the defendant considered and should have
considered in designing this system, the location of the smoke detectors and the time

taken to notify the fire department of the fire.

The defendant's entire argument is

essentially an attack on the credibility of the plaintiff s liability expert. This is clearly not

a suffcient basis for summary judgment because credibility determinations are the
province of

the finder-of-fact, not the court on a summary judgment motion.

STATEMENT OF FACTS

Harold and Lauren Heinz owned the premises and the plaintiff insured the
premises. Despite the presence of a centrally monitored fire detection system designed

and installed by the defendant, the premises was so severely damaged by a fire on July
23, 2001 that it was torn down and a new home was built for Harold and Lauren Heinz.

The plaintiff paid to or on behalf Harold and Lauren Heinz the amount $980,315.94.
(Plaintiff s Damage Analysis attached as Exhibit 10).

Fire Investhmtion Report

The Fire Investigation Report ("Fire Report") prepared by the Wilton Fire
Marshal's Offce provided that the fire occurred at the premises on July 23, 2001. (Fire
Report, attached as Exhibit 1). The report further provided there was heavy fire damage
to the room of origin - a bedroom on the lower level used by the son of Harold and

Lauren Heinz - and moderate to heavy fire, heat and smoke damage to other areas of the
house. The fire department concluded that the fire began in a lower level bedroom and

the burn patterns on the walls of the room and charring of the wood ceiling indicated that

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the fire started at the bed.

The mattress and coverIng for the bed sprIng had been

completely consumed. (Fire Report, attached as Exhibit 1).

A Press Rre1ease issued by the Wilton Fire Department stated that at 11:09 on
July 23, 2001, the Wilton Police dispatcher received a report of a fire alarm at the

premises and notified the Wilton Fire and Rescue Department. Upon arrival, the fire
fighters reported a working fire with heavy smoke throughout the structure and flames
through a portion of

the roof. (Press Release, attached as Exhibit 2). Thus, when the first

fire engine arrived there was already a working fire with heavy smoke through
throughout the structure and flames through a portion of the roof. This occurred despite

the fact that the fire occurred on a shift with six fire fighters which allowed for immediate

response of Wilton's tanker truck from fire headquarters. (Press Release, attached as
Exhibit 2). The Press Release further provided that "this was especially critical since the
fire occurred in a "non-hydrant area." (Press Release, attached as Exhibit 2).

A chief of the fire department who was at the scene of the fire ordered a
secondary source of water be established by utilizing a "dry hydrant" at Kent Pond on

Linden Tree Road. (A dry hydrant is a pipe that runs from the street underground to a
lake, pond, etc. that allows an engine to draft water from a static body of water. (Press
Release, attached as Exhibit 2).

Press reports regarding the fire also emphasized the factors identified in the press

release. Specifically, an article from a newspaper entitled The Hour noted that water to
combat the fire was half a mile away. To get water to the scene, hoses had to be placed

from Kent Pond, approximately half a mile away. The driveway to the premises was
3/1 0 of a mile long. A fire department spokesman is quoted in the article as noting that

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"every 1,200 feet the fire department needed another tanker to pump water", stated the
fire department's spokesman. (Aricle from The Hour, attached as Exhibit 3) An article
from the Wilton Villager on July 26, 2001, noted that the firefighters had to contend with
90 degree heat, a fire in a non-hydrant area and communication problems as different

radio frequencies used by assisting departments. (Aricle from Wilton Villager, Attached
as Exhibit 4). An article from a newspaper entitled, The Bullettn, on July 26, 2001, noted

that the fire was located far from any hydrants. (Aricle from The Bullettn, Attached as
Exhibit 5).

Thus, the Fire Report and the Press Release establish that at the time the first fire
department personnel arrived, the fire had already progressed to the point of heavy smoke
throughout the premises and flames through the roof. Additionally, the premises was

located in a "non-hydrant" area which increased the amount of time it took to get water
on the fire.

The Subscriber Activitv Report
The Subscriber Activity Report is a document generated by the central monitoring

station and purports to list the time that the central monitoring stations was notified of the

fire and when it notified Mr. Heinz and then the fire department of the fire. (Matza
Deposition, pg. 73, attached as Exhibit M to defendant's memorandum,) (Subscriber
Report, attached as Exhibit 6 to this memorandum). According to the Subscriber Activity
Report, the fire was detected on 1 1 : 06 a. m. and 19 seconds. At 1 1 : 06 and 26 seconds the

central monitoring station left a message for Mr. Heinz. At 11 :07 and 8 seconds another

message was left at the premises. The Wilton Fire Department was first contacted at
11 :08 and 13 seconds, almost two minutes after the fire was first detected. Press Rrelease

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issued by the Wilton Fire Department stated that at 11 :09 on July 23, 2001, the Wilton

Police dispatcher received a report of a fire, approximately 47 seconds later than listed in
the Subscriber Activity Report.

Testimony of Harold Heinz:

Harold Heinz testified at his deposition that the premises was built in 1967 or
1968. He further testified that he and his wife purchased the premises in either 1996 or
1997 and after they purchased the premises they had extensive remodeling work done to
the premises. (Depo. of

Harold Heinz, p. 15-16; attached as Exhibit K to the defendant's

memorandum). One of the issues raised by the defendant is when the remodeling work
was done. Mr. Heinz was uncertain as to when the remodeling work was completed and

his testimony reflected this uncertainty. He testified that they had the house remodeled
and that work started in late 1999 and finished sometime in late 2000. (Depo. of

Harold

Heinz, p. 15-16, Exhibit K). He testified that "we added the bedroom, the family room
and the garage and the second story garage, that was done between the end of 1999 or the
beginning of2000 until- you have the records for the occupancy of

May 2002." (Depo.

of Harold Heinz, p 102-03, Exhibit K). Mr. Heinz contacted the defendant Command

Force about a fire detection and security system because his homeowner's insurance

carrier - the plaintiff in this case - required it because of the amount of insurance it
issued to the plaintiff. This fact relates to the issue of when the remodeling work was
done. More specifically, as to when he was asked to have a fire detection and security
system installed, Mr. Heinz testified that "It had to have happened in 1999, 2000, when
we remodeled the house and increased the insurance protection on the house." (Depo. of
Harold Heinz, p. 18, Exhibit K).

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The issue of when the remodeling work was done is not dispositive of the issues
raised by this case. Nonetheless, when the remodeling work was completed can be
answered with some certainty.

Mr. Heinz was uncertain as to the exact dates the

remodeling was commenced and completed, though he did testify that he increased his
insurance coverage because of the remodeling work and the increase in coverage promted

the plaintiff to request the installation of a centrally monitored fire detection system.
There is additional evidence on this issue. More specifically, a Certificate of Occupancy
was issued by the Town of

Wilton on May 18, 2000. This Certificate states that a permit

was issued on August 19, 1999, and that the "new 2 car garage 24 'x 28' and great room

18' x 30', converted existing garage into 2 bedrooms and covered porch 13' x 4',
converted screen porch to music room, and converted 2 bedrooms into 1 master

bedroom." (Certificate attached as Exhibit 7). Pursuant to Connecticut General Statutes
Section 29-265, the issuance of

the Certificate of Occupancy means that the buildings or

structures identified in the Certificate can be occupied or used. Connecticut General
Statutes Section 29-265 provides, in relevant part, that" . . no building or structure

erected or altered an any municipality after October 1, 1970, shall be occupied or used in

whole or in part, until a certificate of occupancy has been issued." Thus, the remodeling
work identified in the Certificate of

Occupancy was completed by May 18, 2000.

As to the construction and design of the premises, Mr. Heinz testified that it was

"a post and beam house. . . the house has huge rafters in it, like 10, 12 inches in depth. .

. the house had beams like one running inside every 10 feet or so." (Depo. of Harold
Heinz, p. 95, Exhibit K).

There wrere beams or rafters throughout the premises,

including the hallways. The design of the premises is significant because the plaintiff s

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expert - and the defendant's expert (as will be discussed later in this memorandum) testified that the design of the premises impacted how quickly the fire detection system
detected the fire.

Lauren Heinz signed a contract with the defendant dated February 14, 2000, and
the installation was done by the defendant sometime shortly thereafter. The fire detection

system installed by the defendant was a centrally monitored system. (Depo. of Harold
Heinz, p. 28, Exhibit K).

Testimonv of Defendant. Matthew Matza
Matthew Matza, President of the defendant, testified at his deposition that
Command Force was contacted either by Mr. or Mrs. Heinz regarding the installation of a

fire detection and security system at the premises. (Matza Deposition, pg. 22; attached as

Exhibit M to the defendant's memorandum). Mr. Matza met with Harold Heinz at the
premises and discussed what his "requirements" were for the system. Mr. Matza testified

that Mr. Heinz informed him that he was having a system installed only because of the
insurance company which insured the premises. (Matza Deposition, pg. 26, Exhibit M)
Mr. Heinz told Mr. Matza that he was trying to satisfy his insurance company's request.

(Matza Deposition, pg. 30, Exhibit M) The defendant notes often in its papers that
Harold and Lauren Heinz requested that the defendant to install a fire detection system

because of the requirements of its homeowner's insurance company (the plaintiff) as if

this fact supports the defendant's argument. It does not. Indeed, this fact supports the
plaintiff.

The defendant knew that Harold and Lauren Heinz requested a centrally

monitored fire detection system because of their homeowner's insurance - in other
words, to provide greater protection to the premises in the event of the fire. Knowing this

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(and even if it did not know this) the defendant should have considered all factors which

impacted the ability of the centrally monitored system to detect a fire. As is discussed
below, the defendant failed to consider many relevant factors.

As to how the system was designed, Mr. Matza claimed that we "walked through

the house and designed it together." (Matza Deposition, pg. 26, Exhibit M) Mr. Matza

testified that he designed a fairly simple burglar alarm and fire alarm system for Mr.
Heinz. (Matza Deposition, pg. 28, Exhibit M) Mr. Matza testified that Mr. Heinz wasn't
looking for the most modern or advanced system.

Mr. Matza did not feel that the

"parameters" set out by Mr. Heinz were inadequate and if he did think it was inadequate
he would have said so. (Matza Deposition, pg. 30, Exhibit M) Mr. Matza testified that Command Force installed two centrally monitored smoke

detectors on the upper level of the premises and one centrally monitored smoke detector
placed on the lower level of the home. The smoke detector in the lower level was placed
in a hallway at the foot of the steps.. (Matza Deposition, pp. 33-34, Exhibit M) The

smoke detectors installed by the defendant were wireless devices, meaning that they
transmitted a signal to a receiver at the main control paneL. As to how the centrally

monitored system was to work in the event of a fire, Mr. Matza testified that when the

smoke detectors detected smoke the central station would get a fire alarm signal and

would call the fire department. (Matza Deposition, pg. 41, Exhibit M) The central
station would first call the premises and then, if there was no answer, would call the fire
department. (Matza Deposition, pp. 41-42, Exhibit M)

Mr. Matza described the premises as an "A-frame ranch, almost like an Aspen-

type of house." (Matza Deposition, pg. 44, Exhibit M) Mr. Matza testified that the

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design of a house impacts the design of the fire detection system. (Matza Deposition, pg.

83) Mr. Matza testified that a beam, such as the beams located in the premises, could
effect how quickly the fire detection system detects smoke. (Matza Deposition, pg. 84,
Exhibit M) Specifically, a beam could slow the smoke from getting to a smoke detector.

(Matza Deposition, pg. 84, Exhibit M) Despite this knowledge and the design of the
premises, Mr. Matza had no specific discussion with Mr. Heinz regarding the beams in
the premises.

What is revealing is the factors that Mr. Matza did not consider when designing

the fire detection system at the premises. He did not consider at all the type of fire
department the Town of Wilton had. (Matza Deposition, pg. 53, Exhibit M) He did not
even know whether the Wilton Fire Department was volunteer or professionaL. (Matza

Deposition, pgs. 53-54, Exhibit M) Significantly, he did not take into consideration
where the closest source of water was to the premises in the event of a fire. (Matza

Deposition, pg. 54, Exhibit M). As noted in the Fire Report, this was an important factor
in how quickly the fire department got water onto the fire.

ARGUMENT
I.

Summary Judgment Standard:

Summary judgment is appropriate only when the submissions of the parties, taken

together, "show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In deciding a

motion for summary judgment, a court must "view the evidence in the light most
favorable to the non-moving party and draw all reasonable inferences in its favor."
American Cas. Co. of Reading, PA v. Nordic Leasing, Inc. 42 F.3d 725, 728 (2nd Cir.

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1994.) To defeat a motion to summary judgment, a plaintiff must "come forward with

enough evidence to support a jury verdict in his favor, and the motion will not be
defeated merely. . . on the basis of conjecture or surmise." Trans Sport, Inc. v. Starter

Sportswear. Inc. 964 F.2d 186, 188 (2nd Cir). A party opposing a motion for summary

judgment "may not rest on the pleadings but must further set forth specific facts in the
affdavits, depositions, answers to interrogatories, or admissions showing a genuine issue
exists for triaL." Cifarelli v. Village of Babylon,

93 F.3d 47, 51 (2nd Cir. 1996.) "In order

to defeat summary judgment, the nonmoving party must offer enough evidence to enable
a reasonable jury to return a verdict in its favor," and "the non-moving party may not rely

on conclusory allegations or unsubstantiated speculation." Byrnie v. Town of Cromwell,
243 F. 3d 93, 101 (2nd Cir. 2001.)

As the US. Supreme Court has noted, in ruling on a motion for summary
judgment, a court must respect the province of the jury. A court, therefore, may not try
issues of

fact. Anderson v. Liberty Lobby, Inc., 477 US. 242, 255, 91 L. Ed. 202, 106 S.
the

Ct. 2505 (1986). It is well established that credibility determinations, the weighing of

evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of the judge. Anderson, 477 US. at 255. Thus, a trial court's task is carefully

limited to discerning whether there are any genuine issues of material facts to be tried,
not to decide them. a court's duty, in short, is confined to issued finding - not issue
resolution. Gallo v. Prudential Residential Services, 22 F. 3d 1219, 1224 (2nd Cir. 1994).

The defendant does not cite any case law - other than cases reciting the standard
of review - in support of its motion for summary judgment. It does not because it cannot.

Indeed, the only cases in which summary judgment has been granted for a defendant

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alarm system designer - installer are cases predicated on either exculpatory clauses or
waiver of subrogation clauses in the applicable contract. Metropolitan Property and

Casualty Insurance Co. v. Budd Morgan Central Station Alarm Co., Inc., 95 F. Supp. 2d

118; 2000 US. Dist. LEXIS 7682 (Summary judgment granted based on exculpatory
clause in contract); Champion Home Builders Co. V. ADT Security Services, Inc. et aI,
179 F. Supp. 2d 16; 2001 US. Dist LEXIS 21375 (Summary judgment granted based on
exculpatory clause in contract) Albany Insurance Co. V. United Alarm Services et aI, 194
F. Supp. 2d 87; 2002 US. Dist LEXIS 6072. (Summary judgment granted based on

waiver of subrogation clause).

II.
A.

THERE ARE GENUINE ISSUES OF MATERIL FACT AND THE
MOTION FOR SUMMARY JUDGMENT MUST BE DENIED.

There Is Substantial Evidence, Including The Testimony Of The Defendant And Defendant's Expert, That The Defendant Was Negligent And Summary
Judgment Therefore, Cannot Be Granted.

As noted above, Mathew Matza, President of Command Force, testified that the
design of a premises impacts the design of a fire detection system. Furthermore, Mr.

Matza testified that the design of the subject premises at 34 Wildwood Drive in Wilton,
Connecticut - the "post-and-beam" or "Aspen" design could impact how quickly the fire
detection system installed by Command Force detected a fire. Yet, he had no discussions

with Mr. Heinz regarding the impact of the beams on how quickly the fire detection
system would detect a fire. Mr. Matza attempts to excuse this failure by asserting that he

and Mr. Heinz designed the system together. (Deposition of Mathew Matza, Exhibit M

to defendant's memorandum; Defendant's responses to interrogatories, attached as

Exhibit 8 to this memorandum). This assertion is nonsense. No evidence has been
produced that Mr. Heinz had any expertise in the design of fire detection systems.

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Regardless of whether Mr. Heinz said that he wanted only to satisfy the request of his
homeowner's insurance carrier, this does not release the defendant from fulfilling its duty

to provide an adequate fire detection system. Indeed, that Mr. Matza was informed that
the homeowner's insurance provider requested a centrally monitored system put him on
notice that the system he designed and installed needed to provide adequate protection

not only for the occupants, but for the property as well.

The testimony of the defendant's expert also demonstrates that there are genuine
issues of material fact.
Testimony of Defendant's Expert:

The defendant's expert testified, in response to the question of had the defendant
installed a centrally monitored smoke detector in the bedroom where the fire originated,
would it have made a difference in the course of

the fire:

Given the hypothetical situation that there was a detector in the bedroom where the fire originated and that detector was
tied in to the central monitoring station, then, obviously,

(emphasis added) the time line would be shorter for this
detector to activate than a detector that's outside the room.

So the signal to the central station would have gone earlier to the fire department. (Deposition of defendant's expert, p. 192; attached as Exhibit N to defendant's memorandum).

Regarding the design of the Heinz house - specifically, the impact of the beams

on the amount of time it would take the smoke detectors to detect the fire - the
defendant's expert testified that:

When a fire develops within a room, the majority of the
products of combustion are going to rise to the ceiling level and fill the room from the top down, akin to what has been described as an inverted bathtub, the same way water fills a

bathtub. Ifwe turn that upside down, that's the same way smoke fills a room, except for the fact that it's not quite as dense and uniform as water and smoke. You know, some
smoke may exit the room before it gets to the ceiling, but in

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general, the bulk of the smoke and fire products are going to fill the room from the ceiling down.
When it reaches the level of an obstruction, such as an open door sofft in the room, then the smoke will spill around the

sofft and fill the next space that's there. If there's a flat
ceiling, it will spread across the ceiling until it runs into an additional obstruction, be it a wall or beam or whatever, and fill that area until it reaches the next level of which it can spill over that obstruction. (Deposition of defendant's
expert, p. 200; attached as Exhibit N to defendant's

memorandum).

In other words, the smoke from the fire which started at the Heinz house on July

23, 2001 had to collect and travel around beam in the room of origin and in the hallway
where the closest centrally monitored detector was located. The sole centrally monitored
detector on the lower level was located at the base of a stairway in a hallway.

Attached to this memorandum as Exhibit 9 numerous photographs which show

not only the extensive damage to the premises, but the "post-and-beam" design of the
house. (Photographs attached as Exhibit 9).

B.

The Defendant Is Incorrect When It Asserts That This Action Is Predicated Solely On The Allegation That The Defendant Violated Specific Rules, Regulations, Codes or Statutes.
The defendant argues in the memorandum supporting its motion for summary

judgment that "the crux of plaintiff s complaint is that the defendant. . . failed to adhere

to the rules, regulations, directives, standards, codes and/or laws established by local,
state and/or national agencies and/or by professionals within the fire prevention

industry."

(Defendant's memorandum, p. 8).

While this is certainly a part of the

plaintiff s allegations against the defendant, the plaintiff has alleged more.
The relevant allegations in the plaintiff s complaint are as follows:

On or about February 4, 2000 the defendant, Command
Force, entered into a contract with Harold and Lauren

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Heinz wherein Command Force agreed to provide a
security system, including smoke detectors and central station monitoring, at the premises.

On or about July 23, 2001, a fire broke out in the premises. The fire originated in a bedroom in the lower level of the premises. The premises and the contents therein were severely damaged by the fire. A substantial portion of the damage to the premises and to the contents of the premises

was caused by the negligence and carelessness of the
defendant, Command Force. Had the defendant, Command

Force, not been negligent in one or more of the ways set forth below, then the fire in the premises would have been
detected earlier than it was, the fire department would have

been notified and responded sooner, the fire would have been confined to a smaller area and the damage to the
premises and its contents would have been reduced.
The loss and damage to the premises and its contents were

caused by the negligence and omissions of the defendant, Command Force, in one or more of the following ways, in
that it:

a. F AILED to advise the plaintiff s insureds, prior to
July 23, 2001, of the proper design and/or installation of a

fire detection/alarm system necessary to provide early
detection and notification of any fire within the premises,

although it could have and should have done so;

b. F AILED to design a fire detection/alarm system
suffcient to provide the necessary early detection and

notification of any fire within the premises;

c. F AILED to install a fire detection/alarm system
suffcient to provide the necessary early detection and

notification of any fire within the premises;

d. F AILED to maintain a fire detection/alarm system
suffcient to provide the necessary early detection and

notification of any fire within the premises;

e. F AILED to recognize deficiencies in the
the fire detection/alarm system that it had installed within the premises;
location/arrangement of

f. F AILED to rectify deficiencies in the
the fire detection/alarm system that it had installed within the premises;
location/arrangement of

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g. F AILED to contact the fire department immediately

upon notification of a fire alarm coming from the premises, although it could have and should have done so;

h. F AILED to adhere to the rules, regulations,
directives, standards, codes and/or laws established by local, state and/or national agencies and/or by professionals within the fire prevention industry.
i. F AILED to place a smoke/fire detector in all of the

bedrooms of the premises;
j. F AILED to adequately consider and evaluate the

design of the premises when installing and locating the
smoke detectors at the premises;

k. F AILED to install a smoke detector just outside of
the bedroom area in the lower level of the residence.
i. F AILED to train, instruct or supervise its employees

on the appropriate arrangement and location of smoke

detectors.

(Plaintiffs Complaint; attached as exhibit A to the defendant's memorandum). Only
subparagraph (h) alleges that the defendant violated rules, regulations, directives,

standards, codes and/or laws established by local, state and/or national agencies and/or by

professionals within the fire prevention industry. This is a negligence action in which the
issue is the same as in all negligence actions; did the defendant violate its duty to the

plaintiff (in this case the plaintiff s insureds).

c.

The Second Report Prepared By Plaintiffs Expert Is Reliable And The
Opinions Contained Therein Are Admissible.

PLAINTIFF'S EXPERT, THOMAS KLEM
The defendant argues in its Motion for Summary Judgment and in its Motion to

Preclude Expert Testimony that the second report prepared by Thomas Klem of T. 1.
Klem and Associates is inadmissible. The defendant essentially attacks the credibility of

the plaintiff s expert, Thomas Klem. This attack is clearly insuffcient for the granting of

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summary judgment for two reasons: (1) Credibility assessments are the province of the jury and not the court on a Motion for Summary Judgment; and (2) The defendant cites
and relies on only a small portion of Mr. Klem's deposition testimony and reports in

support of its Motion for Summary Judgment. Additionally, the defendant argues briefly
that the second report prepared by Mr. Klem is inadmissible pursuant to Daubert v.

Merrill Dow Pharms., 509 US. 579, 113 S. Ct. 2786 (1993) and State v. Porter, 698 A.2d

238 (1997). This is an inappropriate argument for summary judgment because whether

an expert's proffered opinions are admissible pursuant to Daubert v. Merrill Dow
Pharms., 509 US. 579, 113 S. Ct. 2786 (1993) and State v. Porter, 698 A.2d 238
(1997)can only be decided after an evidentiary hearing.

The opinions of Mr. Klem are contained in his reports (Exhibits G and H to
defendant's memorandum) and his disclosure as an expert (Exhibit F to defendant's
memorandum).

In the second report prepared by T.J. Klem and Associates, it is

specifically noted that T.J. Klem and Associates was asked to supplement its fire
investigative analysis regarding the fire at the Heinz house. This report specifically

states, "this additional analysis assesses the adequacy of the structure's installed fire
detection/alarm system (which included alarm monitoring) in providing early detection of

a fire, notification to the monitoring company, timely notification of the fire department
and the system's ability to achieve life safety of the occupants and to limit fire damage to

the home." Mr. Klem further states in his report that "considering the potential threat to
life safety within the home, sound fire protection engineering judgment dictates that this

home should have installed an equivalent level of fire protection throughout all sleeping

areas of the home. The lower level bedrooms did not contain smoke detectors, but they

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should have. Further, due to the ceiling being within the area of fire origin, two detectors

would have provided the best design of the fire alarm system for this area (if properly
placed one detector might have been acceptable)."
memorandum).
(Exhibits H to defendant's

Thus, the second report prepared by Mr. Klem, plaintiff s expert, does not
contradict the first report, as is argued by the defendant in its motions. Rather, the second

report was a more complete and thorough analysis directed specifically at the adequacy

of the fire detection system installed by the defendant. The first report was a cause and
origin investigation and the references to the fire detection system in the first report were

not the final word or a detailed analysis of that system. Thus, the defendant's argument

that summary judgment should be granted or Mr. Klem's testimony precluded because
the second report contradicts the first report is without merit.

The record establishes that Mr. Klem has excellent credentials.

Mr. Klem

testified that he was employed with the NFP A as a Chief Fire Investigator for 12 years

and that his duties included investigating major fire occurrences for the NFP A and
developing investigative reports regarding those fires. (Depo. of

Thomas Klem, 3/16/04,
Law in Support of

p. 8; attached as Exhibit I to the defendant's Memorandum of

Motion

for Summary Judgment). Mr. Klem has testified at trial at least 6 times and has been
deposed approximately 45 times. (Depo. of

Thomas Klem, 3/16/04, p. 9-10; attached as

Exhibit I to the defendant's Memorandum of Law in Support of Motion for Summary
Judgment). He has also testified before Congressional committees twice; once regarding

a major fire in a high rise buildings, and the other occasion regarding mobile home fire
safety standards being considered by Congress. (Depo. of

Thomas Klem, 3/16/04, p. 11;

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attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment).

Mr. Klem developed an investigative protocol for electrical

investigations when he was with the United States Fire Administration and this protocol
was adopted by the NFP A. (Depo. of

Thomas Klem, 3/16/04, p. 27; attached as Exhibit I
Law in Support of

to the defendant's Memorandum of

Motion for Summary Judgment).

Mr. Klem was retained by the plaintiff one or two days after the fire. (Depo. of
Thomas Klem, 3/16/04, p. 32; attached as Exhibit I to the defendant's Memorandum of

Law in Support of Motion for Summary Judgment). He was originally retained to
conduct a cause and origin investigation of the fire at the premises. (Depo. of Thomas
Klem, 3/16/04, p. 34; attached as Exhibit I to the defendant's Memorandum of Law in

Support of Motion for Summary Judgment). The initial report regarding the fire at the
premises was authored by an employee ofMr. Klem, and reviewed, edited, approved and

issued by Mr. Klem. (Depo. of Thomas Klem, 3/16/04, p. 62 and 67-69, attached as
Exhibit I to the defendant's Memorandum of Law in Support of Motion for Summary
Judgment). Mr. Klem was at the premises in October of2001, took photographs, and did
a complete walk-through of the premises. (Depo. of

Thomas Klem, 3/16/04, pp. 80; 88,

attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment).

Mr. Klem authored the second report. (Depo. of Thomas Klem, 3/16/04, p. 62;
attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment). The second report was done after the plaintiff requested (through
its attorney) a more in-depth evaluation of

the fire and the fire detection system installed

at the premises. (Depo. of Thomas Klem, 3/16/04, p. 64-5; attached as Exhibit I to the

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defendant's Memorandum of

Law in Support of

Motion for Summary Judgment). More

specifically, an adjuster, Jake Mollenkopf, affliated with the plaintiff was perplexed at
the severity of the loss at the premises despite the existence of a centrally monitored fire

detection system. (Depo. of Thomas Klem, 3/16/04, p. 72; attached as Exhibit I to the

defendant's Memorandum of Law in Support of Motion for Summary Judgment).
Neither the adjuster not anyone else ever said or suggested to Mr. Klem that the plaintiff

wanted to pursue a third party action. (Depo. of Thomas Klem, 3/16/04, p. 77; attached
as Exhibit I to the defendant's Memorandum of Law in Support of Motion for Summary

Judgment). On the second day of his deposition Mr. Klem again addressed the issue of
why he prepared a second report:

. . . based on my additional review of the fire incident and
the additional review that subsequently happened of
applicable code standards, regulations of the State of

Connecticut and engineering practices to opine as to

whether or not the smoke detection system that was
installed within the premises was installed properly,

adequately, and whether or not - if it was not installed
properly, had it been installed as guided by appropriate

standards, whether or not it made a difference in the

outcome of the fire. (Depo. of Thomas Klem, 5/6/04, p.
165; attached as Exhibit J to the defendant's Memorandum Law in Support of Motion for Summary Judgment). of
Mr. Klem testified that the purpose of smoke detector, pursuant to the NFP A, Life

Safety Code, and Fire Alarm Code is for life safety and property protection. (Depo. of
Thomas Klem, 3/16/04, p. 90-1; attached as Exhibit I to the defendant's Memorandum of

Law in Support of Motion for Summary Judgment). In response to the question of
whether the NFP A makes any reference to property protection, Mr. Klem testified as
follows:

I believe I cited in my second report that there are various sections of the code that refer to that. And certainly from a

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fire protection engineering standpoint, a user of the code
understands that initially life safety objectives are achieved, but there's certain property implications that are either cited or interpreted by engineering judgment. And depending on
the complexity of the fire detection system arrangement,

certainly property protection is strongly implied. (Depo. of Thomas Klem, 3/16/04, p. 91; attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for Summary Judgment).
In response to a question about the impact the renovations at the premises had on

his opinions in the second report, Mr. Klem testified that "Well the conclusions that I
make in the report, the analysis takes two prongs: One within the renovations and one
independent of

the renovations. And from an analysis standpoint, both are relevant topics

for discussion, but the conclusions are the same." (Depo. of Thomas Klem, 3/16/04, p.
105; attached as Exhibit I to the defendant's Memorandum of Law in Support of

Motion

for Summary Judgment).

When asked about the statement - "the building contained a fire detection alarm
system (with smoke detectors positioned about the home according to national standards

at the time of their installation) that was operable at the time of the incident. . " - in the

first report, Mr. Klem testified he agreed with that statement based on the level of
assessment and research done at the time the report was written and submitted. (Depo. of

Thomas Klem, 3/16/04, p. 117; attached as Exhibit I to the defendant's Memorandum of
Law in Support of

Motion for Summary Judgment).

Mr. Klem was asked about the Connecticut State Building Code and its
requirements. The Code provides that when alterations or additions requiring a permit

occur (such as the work done on the Heinz premises) or when one or more sleeping
rooms are added or created an existing dwelling, the entire building shall be provided
with smoke detectors as required in new buildings (smoke detector in every bedroom).

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(Depo. of Thomas Klem, 3/16/04, p. 127; attached as Exhibit I to the defendant's
Memorandum of Law in Support of

Motion for Summary Judgment).

Mr. Klem testified that he used various computer fire models but none of these
models were used in his final conclusions. (Depo. of Thomas Klem, 3/16/04, p. 128;

attached as Exhibit I to the defendant's Memorandum of Law in Support of Motion for
Summary Judgment).

The smoke detector closest to the room of fire origin was eleven feet from the
doorway to the room and another 12 feet to the location of fire origin. (Depo. of

Thomas

Klem, 5/6/04, p. 200; attached as Exhibit I to the defendant's Memorandum of Law in
Support of

Motion for Summary Judgment). The required response time under the NFP A

Section 72 for a central monitoring station to contact a fire department is 90 seconds.

(Depo. of Thomas Klem, 5/6/04, p. 218; attached as Exhibit J to the defendant's
Memorandum of Law in Support of Motion for Summary Judgment).
The central

monitoring station, chosen by the defendant, clearly violated this provision of the NFP A

because it took more than 90 seconds to contact the fire department. Thus, plaintiff has
established that the defendant violated the NFP A.

The Testimony of Thomas Klem Satisfies The Standard Set Forth In Daubert v. Merril Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786 (1993)

The defendant argues that Mr. Klem's testimony is inadmissible pursuant to
Daubert v. Merrill Dow Pharms., 509 US. 579, 113 S. Ct. 2786 (1993). Under this
standard, the trial court is required to act as "gatekeeper" and scrutinize professional

expert testimony. As gatekeeper, "the judge's role is to keep unreliable and irrelevant
information from the jury because of its inability to assist in factual determinations, its
potential to create confusion, and its lack of

probative value." See e.g. Allison v. Meghan

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Medical Corp, 184 F.3d 1300, 13 1 1-12 (11th Cir. 1999).

A trial judge is to make "a

preliminary assessment of whether the reasoning or methodology underlying the

testimony is scientifically valid and whether that reasoning or methodology can be
applied to the facts in issue." Daubert, 509 US. at 592-93, 113 S. Ct. at 2796; Porter,
241 Conn at 64, 698 A.2d at 744.

Defendant's argument that Mr. Klem's testimony must be precluded pursuant to

Daubert v. Merrill Dow Pharms., 509 US. 579, 113 S. Ct. 2786 (1993) must faiL. First,

this argument requires an evidentiary hearing and cannot be decided on a motion for
summary judgment. Second, that Mr. Klem has excellent credentials and experience in
fire analysis is indisputable. Third, the analysis and examination conducted by Mr. Klem
and his employees satisfy the standards set forth in Daubert. Indeed, the defendant's own

expert agrees with Mr. Klem's most significant opinions; that the design of the premises

impacted how quickly the fire detection system detected the fire, and a centrally
monitored detector in the room of fire origin would have detected the fire sooner.

CONCLUSION
Summary judgment must be denied because there are genuine issues of material
fact to be decided by the finder-of-fact, not the Court on a summary judgment motion.

This is a negligence action and summary judgment is inappropriate in such actions
because of the nature of the questions to be decided in a negligence action; for example,

the credibility of all of the witnesses. The defendant knew that the centrally monitored
fire detection system it installed was requested by the homeowner's insurance carrier - in

other words, to protect the property, not just the occupants. There were numerous factors
- the location of the closest water supply, type of fire department, and design of the

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premises, which the defendant failed to consider in designing the system. The arguments
made by the defendant as to the admissibility of

the testimony ofMr. Klem are arguments

addressing the weight to be given the testimony and the credibility of Mr. Klem. Thus,
the arguments are not a basis for summary judgment; rather they are arguments to be

made to a jury.

The defendant repeatedly asserts that there was no requirement by statute or any
other standard that a "centrally monitored" detector be installed in the room of fire origin.

While this is correct, it is an incomplete argument. The only type of detectors installed

by the defendant were centrally monitored. Thus, it is logical to conclude that had the

defendant decided to install a detector in the room of fire origin, it would have been
centrally monitored. The defendant should have installed such a detector in the room of
fire origin, a bedroom. given the design of the house and the locations of the closest water
source available to fight a fire.

Based on the foregoing, the defendant's motion for summary judgment must be
denied.
THE PLAITIFF,

GLENS FALLS INSURCE COMPANY a/s/o HAROLD and LAURN HEINZ

By /s/ Joseph E. Mascaro
Joseph E. Mascaro, Esq. - CT 12736 Morrison Mahoney LLP
One Constitution Plaza, ioth Floor

Hartford, CT 06103 (860) 616-4441 (860) 541-4878
j mascaro(£morrisonmahoney. com

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CERTIFICA TE OF SERVICE

I hereby certify that a copy of the foregoing was mailed to the following parties of record postage prepaid this 21 8t day of September, 2004, as follows:
Attorney Michael Mezzacappa Kaufman, Borgeest & Ryan, LLP 200 Summit Lake Drive Valhalla, NY 10595

/s/ Joseph E. Mascaro Joseph E. Mascaro