United States District Court, E.D. Virginia, Alexandria Division
O'Grandy United State District Judge
case arises out of a fire that began in the refrigerator of
Michae[ and Donna Runnels's (the "Runnelses")
Winnebago. The fire then spread to their nearby house and
garage, and as a result, the Runnelses lost most of their
possessions. Mr. Runnels was injured while trying to save his
possessions from the fire. Brian Colbert, a sheriffs deputy
and volunteer fireman who arrived at the scene, was also
injured. Mr. Colbert and the Runnels ("Plaintiffs")
brought suit against the refrigerator manufacturer, Norcold,
Inc. and its corporate affiliates, Thetford Corporation and
The Dyson-Kissner Moran Corporation (collectively
"Defendants") (without Norcold, the "Corporate
Defendants"). On February 23, 2017, however, the parties
notified the Court that they had settled all of the
Runnelses' claims. This leaves only Mr. Colbert's
to the settlement. Defendants moved for summary judgment on
the application of the Fireman's Rule to Mr.
Colbert's elaims. (Dkt. No. 119). The Corporate
Defendants have separately moved for summary judgment based
on their limited liability. (Dkt. No. 125). Plaintiff Colbert
has moved for summary judgment on all of Defendants'
affirmative defenses. (Dkt. No. 129). The Court held oral
argument on Friday, February 24, 2017 and GRANTED
Defendants' motion for summary judgment on March 3, 2017.
This Memorandum Opinion details the reasons for that
December 2006, the Runnelses bought a Winnebago Adventurer
Recreational Vehicle (the!1RV"), which they
used regularly throughout the time they owned it. The RV came
with a Norcold 1200 Series gas absorption refrigerator. On
August 2, 2015, Mr. Runnels turned on the refrigerator in
preparation for a trip. He then left the RV and returned to
his home. Shortly thereafter, he saw smoke coming from the
RV. He rushed to the RV and saw flames coming from the
refrigerator when he opened the door. The fire spread, and
ultimately consumed the RV, the Runnelses' home, and
their garage. Most of the Runnelses' possessions were
destroyed in the fire.
Colbert is a volunteer firefighter and a sheriffs deputy with
the Fauquier County Sheriffs Office. Mr. Colbert received at
least 18 weeks of response training for his job as a deputy
and had previously received training specific to responding
to fires in his capacity as a volunteer fireman. Colbert
Depo. 17:3-18:15 (Dkt. No. 120-6). Mr. Colbert had experience
fighting fires "all over the county" and understood
the risks associated with fires, including the risks of
explosions. Id. at 18:15-20:15. In this case, Mr.
Colbert responded to the fire, and while on the scene was
struck by a piece of shrapnel. The shrapnel hit Mr. Colbert
in the arm and injured him.
refrigerator at issue was designed, manufactured, and
marketed by Norcold. Norcold is owned by Thetford, which is
in turn owned by DKM. Michael Harris is the director of
Norcold and is on the board of directors at DKM. He was
deposed as the corporate representative for both DKM and
Thetford. Mr. Harris also sits on the incident review
committee meetings where Norcold discusses claims against it.
diving into the details of the recalls at issue in this case,
it is helpful to understand how a gas absorption refrigerator
works. The refrigerator has a cooling unit that operates by
heating a solution of ammonia, water, and cremate until that
solution evaporates into vapor. The vapor is condensed in the
rectifier, which separates the liquid ammonia and water. The
liquid ammonia is then released. Because its boiling point is
very low (-28.01°F), the ammonia evaporates almost
immediately. Hydrogen is added to the system in order to
lower the partial pressure of the gas, which in turn lowers
the boiling point further so that the solution's
temperature remains below the internal temperature of the
refrigerator. The ammonia's evaporation has a cooling
effect on the inside of the refrigerator because the ammonia
absorbs heat as it evaporates. The ammonia gas is captured by
a device that mixes the ammonia with water again, and the
cycle repeats. The whole process is initiated by applying
heal to the outside of the boiler tube of the cooling unit.
system, the solution of water and ammonia is corrosive and
can erode the stee! tubing used for the cooling unit. If
enough corrosion occurs, it can create a leak in the steel
boiler area. When this happens, the cooling liquid can leak
out of the tubing. At this point, the hydrogen gas may also
leak out of the tubing. Hydrogen is a highly flammable gas,
and could be ignited once exposed to external elements.
Norcold admits that this feature-"fatigue failure of
corrosion in the boiler tube of the refrigerator that leaks
hydrogen gas"-is a product defect. Klein Depo. 28:7-10
(Dkt. No. 130-4). It appears, however, that corrosion is
impossible to control completely in this sort of gas
absorption refrigerator, and Plaintiff has not produced any
evidence of a commercially available absorption refrigerator
that has completely negated the problem of corrosion.
See Keifer Depo. 153:18-22 (Dkt. No. 120-9).
have undertaken a number of steps in response to the fires in
its refrigerators. Though these steps are recounted in
numerous evidentiary sources, the general timeline is
summarized in a report from Applications Engineering Group,
Inc. ("AEGI"), that was commissioned to:
[R]eview a fire investigation which involved a Norcold
refrigerator and determine if the Norcold refrigerator
exhibited the characteristics of a common defect (corrosion
causing a leak in the boiler). Further, if the propensity of
their refrigerators to produce fires due to the defect was
well known to Norcold and determine if Norcold has
sufficiently addressed the common defect to prevent further
refrigerator caused fires.
Keifer Rep. at 1 (Dkt. No. 120-7). Orion P. Keifer, a
well-qualified engineer, conducted the investigation and was
responsible for the AEGI report. Id.
other observations and analysis, Mr. Keifer came to the
following conclusions: (1) Norcold has known that their
cooling units have been leaking flammable gases from the
boiler area since 1999, and fires in the 1200 Series have
been occurring since 2001; (2) Norcold has known that the
1200 Series specifically has suffered leakage due to boiler
corrosion since at least 2005; (3) except for a minor change in
a ''heater pocket weld" in 2001, Norcold did not
change the design of the 1200 Series boiler tubes until 2012,
even though such changes were necessary to ''address
the root cause of the Norcold refrigerator failures ... and
subsequent fires"; (4) Norcold implemented a series of
"fixes" that were designed to remove ignition
sources, but these fixes did not address the corrosion itself
or the possibility of external ignition sources; (5) Norcold
finally addressed the "root cause" in 2012 when it
redesigned its refrigerators, however, it did not inform its
customers of the safer design and instead stated that the
design was intended to improve cooling rather than address
safety issues; and (6) the design changes show that a safer
design was feasible and was "based on concepts,
materials and designs that have been readily available in the
marketplace since at least by [sic] 2000." Id.
dwelling too much on the details of the report, it is also
worth noting some of the additional action that Norcold has
taken in response to the fires in its refrigerators. First,
Norcold has taken various steps to monitor and address the
issues of fires since it first discovered the cooling unit
leaks. Id. at 7. It has commissioned 10 separate
studies on the causes of the leaks and the best way to
redesign the boiler tubes. Id. These include studies
from the Edison Welding Institute ("EWI") and the
University of Dayton Research Institute ("UDRI").
Id. Norcold has also kept an "incident
log" that has recorded more than 2, 900 claims specific
to the 1200 Series since 2001. Id. at 8.
Additionally, Norcold maintains incident files for each fire
claim, and has investigated many of the claims. Id.
addition, Norcold has issued seven product safety recalls and
retrofit campaigns as a result of customer complaints that it
received. Id. These campaigns were
conducted in four phases. The first set of recalls was
directed at the N6 and N8 models and replaced the cooling and
heating units of the refrigerators. Id. Next,
Norcold recalled early model 1200 Series (those made in
1996-97) to address a similar problem. Id. at 10.
The third wave of recalls retrofitted all early model
refrigerators with a Thermal Safety Switch ("TSS")
that was designed to detect high temperatures in the
refrigerator cabinet and shut off power before a fire
occurred. Id. The Runnel ses' refrigerator was
not included in this recall because it was a later model that
had an algorithm that Norcold beiieved would perform the same
function as the TSS. Id.
on October 7, 2010, Norcold issued NHTSA Recall No. 10E-049,
which included all 1200 Series refrigerators. Id. at
10; Defs. Opp'n, Ex. 14 (Dkt. No. 152-14) (October Recall
Letter). The purpose of the recall was to retrofit the
refrigerators with a high temperature sensor
("HTS") that would monitor the boiler area for high
temperatures and detect them faster than the TSS. Keifer Rep.
at 11. When the HTS was triggered, it would shut off the
refrigerator's power before a thermal event in the boiler
tube could occur. Id. It is undisputed that the HTS
does not rule out the possibility of hydrogen being ignited
from sources other than the refrigerator. Defs. Opp'n at
18. Mr. Keifer therefore concludes that all of these recalls
were imperfect solutions to the problem, which he argues
should have addressed the corrosion issues in the cooling
unit rather than simply removing an ignition source. Keifer
Rep. at 11. There are, however, no allegations that an
alternative ignition source caused the fire in this case, and
it does not appear that any such instance has ever been
and DKM admit that there have been fires reported since the
HTS was installed and that the HTS does not necessarily stop
fires from occurring,  Pis. MSJ ¶ 12; Roberts Depo.
45:19-25, 49:1-7, 51:17-53:1 (Dkt. No. 147-6); Harris Depo.
120:20-121:8 (Dkt. No. 147-7). Specifically, Defendants admit
that they "were conscious and knew in 2010 when they
issued the HTS recall that the recall would not stop the
corrosion and leaking of highly flammable gas in Norcold
refrigerators." Klein Depo at 90:13-19 (Dkt. No. 130-4).
At that time, Defendants had received a number of
recommendations regarding ways to prevent the cause of the
defect, such as thicker boiler tubes and stronger metal;
however, Norcold did not implement these changes in the
recall. It did implement the changes in the newly-designed
1200 Series refrigerators produced after 2012. Existing
customers were not notified of this change in design. Nor
were they offered the opportunity to substitute their old
model refrigerators for the newer and safer post-2012 1200
Series. Keifer Rep. at 11.
October 2010, two days after receiving the recall notice, Mr.
Runnels brought his refrigerator in to be fitted with the
HTS. The recall kit was installed by a company called
Restless Wheels in Virginia. Keifer Rep. at 12. After the
installation, the Runnelses did not experience any issues
with their RV or their refrigerator until 2015.
2015, the Runnelses took their RV to a race in Talladega.
During this trip, the refrigerator stopped cooling, and Mr.
Runnels called a technician who stated that he worked on
Norcold refrigerators. The technician replaced a fuse in the
refrigerator. Thereafter, the refrigerator functioned without
issues until die fire on August 2, 2015.
Rule of Civil Procedure 56 provides: "The court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Summary
judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."
CelotexCorp. v. Catrett, 477 U.S. 317, 322 (1986).
party moving for summary judgment has the initial burden of
showing the court the basis for its motion and identifying
the evidence that demonstrates the absence of a genuine issue
of material fact. Id. Once the moving party
satisfies its initial burden, the opposing party has the
burden of showing, by means of affidavits or other verified
evidence, that there exists a genuine dispute of material
fact. See Matushita Elec. Indus. Co. v. Zenith Radio
Corp.,475 U.S. 574. 586-87 (1986); see also Local
Union 7W7v. ClinchfieldCoal Co.,124 F.3d 639, 640 (4th
Cir. 1997) ("To avoid summary judgment, the non-moving
party's evidence must be of sufficient quantity as to
establish a genuine issue of material fact for
trial.") (emphasis in original). A dispute of material
fact is genuine if a reasonable jury could return a verdict
for the nonmoving party." United States v. Carolina
Transformer Co.,978 F.2d 832, 835 (4th Cir. 1992)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)). However, "[f]anciful inferences and
bald speculations of the sort no rational trier of fact could
draw or engage in at trial need ...