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Metropolitan Property & Casualty v. Harper6/7/2000
Argued and submitted March 8, 2000, at McMinnville.
Summary judgment reversed and remanded; directed verdict on Metropolitan's contract claim against Harper reversed and remanded for new trial; directed verdict in All City's favor on Metropolitan's negligence specification in subparagraph (a) reversed and remanded for new trial; directed verdict in Harper's favor on Metropolitan's negligence specifications subparagraphs (a), (b), and (c) reversed and remanded for new trial; otherwise affirmed.
Plaintiff Metropolitan Property and Casualty (Metropolitan) appeals from a final judgment entered in this breach of contract and negligence action, arising from a fire that destroyed its insureds' residence. Metropolitan asserts that the trial court erred in granting partial summary judgment in favor of defendant All City Electric, Inc. (All City), in directing verdicts in defendants' favor on Metropolitan's remaining claims, and in granting defendants' motion to substitute Metropolitan as plaintiff in place of its insureds. We affirm in part and reverse and remand in part.
In 1994, Michael and Nancy Holcomb purchased a house in Gold Beach and procured a homeowners insurance policy from Metropolitan covering the residence. In August 1994, the Holcombs entered into a written contract with defendant John S. Harper, a general building contractor, to make various structural modifications and to renovate the electrical and plumbing systems of the residence. Harper subcontracted the electrical work to All City. In late November or early December, Harper asked All City to provide a space heater in order to facilitate the drying of newly hung sheetrock. All City delivered and connected a heater directly to the circuit panel in the basement. Harper used the heater almost continuously for 24 hours a day during the three weeks leading up to December 31. In the early morning hours of December 31, a fire destroyed the residence. The Holcombs made a claim for the resulting loss on their homeowners policy, and Metropolitan paid the claim. As part of the consideration for settlement of the claim, the Holcombs executed a written agreement releasing Metropolitan from any potential claims arising from the fire and subrogating to Metropolitan their rights against third parties relating to the fire.
In November 1997, Metropolitan filed this action against defendants in the Holcombs' name, alleging that defendants negligently caused the fire. The amended complaint alleged:
"On or about December 31, 1994, a fire caused damage to [the Holcombs'] property. The cause of the fire was the negligence of defendants Harper * * * and All City Electric, in that they failed to exercise reasonable care in one or more of the following:
"(a) In placing an electrical heater too close to combustibles;
"(b) In failing to inspect, or monitor the heater to ensure that it could be operated safely;
"(c) In leaving the premises and the heater unattended and unsupervised while the heater remained operating;
"(d) In failing to ensure that the heater was property equipped with a thermostat to prevent the unit from overheating;
"(e) In failing to ensure that the heater was property placed to prevent the heater from tipping over;
"(f) In failing to ensure that the heater was property equipped with a 'trip-switch' to prevent the heater from operating if it has tipped over;
"(g) In failing to properly connect the heater to the electrical panel and by using an inappropriate breaker to power the heater."
Before trial, All City moved for summary judgment with respect to all specifications of negl
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