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Runnels v. Norcold, Inc.

United States District Court, E.D. Virginia, Alexandria Division

March 24, 2017

MICHAEL RUNNELS et ai, Plaintiffs,
NORCOLD, INC., et al., Defendants.


          Liam O'Grandy United State District Judge

         This 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 claims.[1]

         Prior 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 decision.

         I. BACKGROUND

         In 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.

         Mr. 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.

         The 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.

         Before 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.

         In this 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).

         Defendants 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.

         Among 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[2]; (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. at 1-3.

         Without 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.

         In addition, Norcold has issued seven product safety recalls and retrofit campaigns as a result of customer complaints that it received.[3] 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.

         Finally, 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 documented.

         Thetford 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, [4] 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.

         In 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.

         In May 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.


         Federal 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).

         The 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 ...

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