The verdict favoring a home warranty company, sued for wrongful death by the mother of a Greensboro man who died of carbon monoxide poisoning in his home in 2008, has been upheld by the North Carolina Court of Appeals.
The mother/plaintiff alleged the warranty company was negligent in hiring a heating/cooling company with a poor business quality record. The firm had been on probation by the North Carolina Board of Examiners of Plumbing, Heating and Fire Sprinkler Contractors. Later, the same company was the target of a complaint alleging incompetence that nearly resulted in a customer’s new home catching fire.
Our Greensboro wrongful death lawyers understand that while plaintiff sued on a host of negligence theories, including negligent retention and vicarious liability, the two at issue upon appeal were two claims dismissed prior to trial – Unfair and Deceptive Trade Practice and breach of implied warranty. The appellate court ultimately indicated the directed verdict for defendant on the UDTP claim was proper, and the plaintiff failed to properly preserve the grant of directed verdict on the breach of implied warranty claim.
According to court records in Gregory v. One Republic Home Protection Company, Inc., the father of three children (19, 15 and 6) moved into the home in 2008 after his sister signed a lease. The owner, who purchased the house as an investment rental in 2007, was not informed by his real estate agent/property manager that the home had a warranty from the defendant. It was not until summer 2008, when his tenant complaint of an air conditioning problem, that he became aware of the existence of a home warranty.
The landlord – unaware of the warranty – contacted a technician on his own, who advised both the heating and cooling systems might need replaced. That’s when the property manager informed the landlord about the warranty, and in turn contacted the warranty company, which sent one of its regular independent contractors – the heating/cooling company with the poor record.
At first, a technician with the company diagnosed a cracked heat exchange in the furnace. This kind of problem could have resulted in perilous release of carbon monoxide into the home. Afterward, the owner of the company came to the home himself to inspect the system, determined the exchange wasn’t cracked and didn’t need replaced. He didn’t identify any other problem with the system.
Subsequently, analysis by expert witnesses for both plaintiff and defendant would concur the heat exchange wasn’t leaking much, if any, carbon monoxide. Both instead generally agreed the negative pressure in the closet where the furnace was located caused the lethal gas to be sucked down into the exhaust pipe in the house, rather than properly sucking the exhaust out of the home.
In mid-November, days after the heating/cooling company’s inspection, the tenant and his female friend were found dead inside of carbon monoxide poisoning.
Plaintiff settled with the heating and cooling company and the estate of its owner (who died in 2011) for $270,000.
However, the lawsuit against the management company continued. After a two-week trial and 40 minutes of deliberation, a jury decided the heating and cooling company was not negligent, and therefore did not need to answer whether defendant negligently hired them.
Upon appeal, plaintiff argued certain evidence was improperly admitted at trial (evidence of decedent’s prior criminal convictions), and further the trial court erred in dismissing her claims of UDTP and breach of implied warranty.
On the allowance of evidence of criminal convictions, the appellate court found it was proper in light of plaintiff’s submission of other character evidence painting him in a positive light. The appellate panel found trial court did not abuse its discretion in this decision.
On the issue of UDTP, plaintiff would have had to show decedent suffered actual injury as a proximate result of defendant’s deceptive statements or misrepresentations. She would have needed to prove the warranty company misrepresented the heating/cooling company’s qualifications by keeping key information from the landlord, and that this resulted in her son’s death. However, the appellate court found the man’s death wasn’t caused by the heating/cooling company, which breaks the chain of proximate cause plaintiff as required to prove.
On the issue of breach of implied warranty, the plaintiff improperly asserted a breach of implied warranty of habitability, in which a landlord impliedly warrants to a tenant that the property is fit for habitation. However, the lawsuit was not against the landlord, but rather the warranty company, for which implied warranty of merchantability might have been a better assertion. However, because she never made this assertion, it was not properly preserved for appeal.
Contact our North Carolina wrongful death lawyers at Lee Law Offices today by calling 800-887-1965.
Gregory v. One Republic Home Protection Company, Inc., Sept. 16, 2014, North Carolina Court of Appeals
More Blog Entries:
Ainsworth v. Chandler: On Third Party Interveners in Premises Liability Cases, Sept. 15, 2014, Greensboro Wrongful Death Attorney Blog