Great Northen Insurance Company v. Eastern Propane Gas, Inc.

MOTION for Summary Judgment

D. Mass.November 29, 2016

1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS _________________________________________________ GREAT NORTHERN INSURANCE COMPANY, ) Plaintiff, ) ) v. ) C.A. No.: 1:15-cv-12955-JGD ) EASTERN PROPANE GAS, INC. ) Defendant, ) MOTION AND MEMORANDUM OF LAW OF THE DEFENDANT FOR SUMMARY JUDGMENT ON THE PLAINTIFF’S ACTION SEEKING CONSEQUENTIAL DAMAGES The defendant, Eastern Propane Gas, Inc. (“Eastern Propane”), moves this Court to allow its Motion for Summary Judgment and to enter an Order dismissing the plaintiff’s action that seeks subrogation from Eastern Propane because the plaintiff’s subrogor had agreed in a written contract that Eastern Propane was not responsible for consequential damages caused by the propane supply provided by Eastern Propane being exhausted, which is the basis for the plaintiff’s action against Eastern Propane. In support of its motion, Eastern Propane alleges as follows: I. RELEVANT AND MATERIAL FACTS 1. The plaintiff alleges in its Complaint that on January 23, 2015, the water supply line at a home owned by its insured, Anne Davis (“Ms. Davis”), that was located at 12 Mt. Locust Place in Gloucester, Massachusetts (“12 Mt. Locust Place”) froze and ruptured and that water damage occurred because the liquid propane (“LP”) gas supplied to the home by Eastern Propane pursuant to an automatic delivery agreement between Ms. Davis and Eastern Propane for the provision of LP gas to Ms. Davis’s property was “inadequate,” which caused the heating system to fail to operate. See Exhibit A, Plaintiff’s Complaint, at ¶¶ 3, 6-15. Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 1 of 9 2 2. Eastern Propane denies the allegations of the plaintiff. 3. On December 8, 1997, James S. Davis (“Mr. Davis”), Ms. Davis’s husband, sold 12 Mt. Locust Place to Ms. Davis for $1.00. See Exhibit B, Deed filed in Essex County South Registry of Deeds. 4. On October 25, 1999, an agreement governing the sale and delivery of LP gas by Eastern Propane to Mt. Locust Place, owned by “Anne/Jim Davis”, was signed. See Exhibit C, Terms and Conditions of and for the Delivery and Supply of LP Gas and Related Equipment and Parts, and Exhibit D, Eastern Propane’s Answer to Plaintiff’s Interrogatory No. 13 at p. 10. 5. The agreement governing the sale and delivery of LP gas by Eastern Propane to Mt. Locust Place specifically states that, In recognition that the depletion of the supply of LP gas [to 12 Mr. Locust Place] varies with the usage demands of the Customer(s), and that the Customer’s(s’) usage demands will fluctuate in relation to the Customer’s(s’) fuel requirements, Eastern [Propane] cannot and does not assume responsibility and is not accountable for the exhaustion of the LP Gas at [12 Mt. Locust Place], or the consequences of its exhaustion, direct or indirect.” See Exhibit C; Exhibit D at Eastern Propane’s Answer to Plaintiff’s Interrogatory No. 4 at p. 5; and Exhibit E, Excerpts of Deposition Testimony of Eastern Propane’s Rule 30(b)(6) Designee James Blake, at pp. 70:5-70:12, 70:24-71:18, 74:9-74:15; 78:15-79:1. 6. The agreement governing the sale and delivery of LP gas by Eastern Propane to Mt. Locust Place expressly indicated that, I/We, the undersigned Customer(s), acknowledge that I/we have read and received a copy of the foregoing terms and conditions and agree that they accurately and fully represent the contractual understandings relating to the matters referenced. See Exhibit C. Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 2 of 9 3 7. Both Ms. Davis and Mr. Davis are Directors of international conglomerate New Balance Athletic Shoe, Inc. See Exhibit F, Corporate Documents relating to New Balance Athletic Shoe, Inc. 8. Further, both Ms. Davis and Mr. Davis are the sole members of Red Line Limit, LLC, which owns and oversees real property and employs the caretaker who was responsible for maintaining and safeguarding 12 Mt. Locust Place. See Exhibit G, Red Line Limit, LLC corporate documents; Exhibit H, Excerpt of Deposition Transcript of Richard Noone, at pp. 1-2, 4, 6:10-6:24, 9:7-10:10. II. GOVERNING LAW A. Limitation of Damages 9. Under Massachusetts law governing contracts relating to sales, the agreement . . . may limit or alter the measure of damages recoverable . . . . Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not. G.L. c. 106, § 2-719(1)(a) and (3). 10. The determination of whether the clause is unconscionable is one for the Court to make, and, in making the determination, [t]he basic test is whether, in the light of the general commercial background and the commercial needs of the particular trade or case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract. Subsection (2) makes it clear that it is proper for the court to hear evidence upon these questions. The principle is one of the prevention of oppression and unfair surprise and not of disturbance of allocation of risks because of superior bargaining power. G.L. c. 106, § 302 (citation omitted). Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 3 of 9 4 11. Under Massachusetts law, “unconscionability must be determined on a case by case basis . . . giving particular attention to whether, at the time of the execution of the agreement, the contract provision could result in unfair surprise and was oppressive to the allegedly disadvantaged party.” Zapatha v. Dairy Mart, Inc., 381 Mass. 284, 292, 293-94 (1980) (finding no unfair surprise to plaintiffs where contractual clause was “neither obscurely worded, nor buried in fine print in the contract,” where plaintiffs had more than enough time to look over agreement before they signed it, and where plaintiff had significant background in business). 12. “In determining whether a practice is unfair or oppressive, the court may take into account a myriad of factors, such as the commercial sophistication of the party claiming unconscionability; whether such party was represented by counsel; whether the clause was obscure or buried in fine print, or conversely, whether it was out on the table and the subject of active negotiation; the frequency with which clauses of the type challenged are used in analogous situations; whether the relationship between the parties was arm’s length or quasi-fiduciary; . . .and whether the party seeking to enforce the challenged provision took unfair advantage of the other party's weakness, vulnerability, or dependency, or used unfair or improper means to place the other party in such position.” Nasco, Inc. v. Public Storage, Inc., 1995 WL 337072, at *5 (D.Mass.1995). B. Law Governing Subrogation 13. “By stepping into the shoes of the subrogor, the subrogee is bound by the timing of the original claim, the date upon which it arose and the date upon which it expires under a statute of limitations. See United States v. California, 507 U.S. 746, 756, 113 S.Ct. 1784, 123 L.Ed.2d 528 (1993) (recognizing that if a subrogor's rights are barred, so too are a Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 4 of 9 5 subrogee's rights because a subrogee “cannot acquire by subrogation what another whose rights he claims did not have.” (internal quotation marks omitted)). McCabe v. Braunstein, 439 B.R. 1, 6 (D. Mass. 2010) 14. Under Massachusetts law, “the doctrine of subrogation provides that when an insurer pays an insured's claim under its insurance contract, the insurer succeeds to any right of action the insured may have against the parties allegedly responsible for the loss.” Liberty Mut. Ins. Co. v. Nat'l Consol. Warehouses, Inc., 34 Mass. App. Ct. 293, 296 (1993) (internal citations and quotation marks omitted); see also, St. Paul Fire & Marine Ins. Co. v. Birch, Stewart, Kolasch & Birch, LLP, 379 F.Supp.2d 183, 192-93 (D.Mass.2005). 15. The insurer's rights of subrogation, however, are “no greater than the rights of the insured.” Nat'l Consol. Warehouses, Inc., 34 Mass. App. Ct. at 296. C. Negligent Claims Fail as a Matter of Law Where the Alleged Duty Arises from a Contract 16. Where a contract governs the performance of a duty, a plaintiff has no cause of action in tort absent an independent duty imposed by law. Treadwell v. John Hancock Mut. Life Ins. Co., 666 F. Supp. 278, 289 (D. Mass. 1987) (citing Prosser & W. Keeton, TORTS § 92 (5th ed. 1985)). 17. A “failure to perform a contractual obligation is not a tort in the absence of a duty to act apart from the promise made.” Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 368 (1997) (“if the alleged obligation to do or not to do something that was breached could not have existed but for a manifested intent, then contract law should be the only theory upon which liability would be imposed,” quoting W. Prosser & W. Keeton, TORTS § 92, at 656 (5th ed. 1984)). Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 5 of 9 6 D. Summary Judgment Standard 18. A motion for summary judgment must be granted where admissible evidence shows 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. Fed.R.Civ.P. 56(c); see also, In re Varrasso, 37 F.3d 760, 762 (1st Cir.1994) (“It is apodictic that summary judgment should be bestowed only when no genuine issue of material fact exists and the movant has successfully demonstrated an entitlement to judgment as a matter of law.”). 19. “To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party's position.” Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990). 20. Where the moving party establishes that based on the undisputed facts it is entitled to summary judgment, the burden then “shifts to the nonmoving party to establish the existence of an issue of fact that could affect the outcome of the litigation and from which a reasonable jury could find for the [nonmoving party].” Id. (citations omitted). 21. An assertion of mere allegations is not sufficient for the non-moving party to overcome summary judgment. Id. 22. Rather, the non-moving party, to defeat a motion for summary judgment, is required to “adduce specific, provable facts which establish that there is a triable issue.” Id. 23. Rule 56(e) “requires non-movants to submit evidence that would be admissible at trial to oppose properly submitted motions for summary judgment.” FDIC v. Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986). 24. “There must be ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 6 of 9 7 summary judgment may be granted.’ ” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986). 25. “The function of summary judgment is to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.” Perkins v. Brigham & Women's Hosp., 78 F.3d 747, 749 (1st Cir. 1996) (internal citations and quotations omitted). III. ARGUMENT Eastern Propane is entitled to summary judgment because based on the undisputed facts there is no genuine issue of material fact, and the evidence establishes that as a matter of law the plaintiff’s subrogor/insured had agreed that Eastern Propane was not responsible for the consequences, whether direct or indirect, resulting from the supply of propane delivered by Eastern Propane from running out. The undisputed facts establish that on October 25, 1999, the plaintiff’s subrogor/insured signed an agreement for Eastern Propane to supply propane to 12 Mt. Locust Place in which it was expressly stated that Eastern Propane was not liable for any direct or indirect consequences arising from the “exhaustion” of the propane supply. The plaintiff here, however, is seeking subrogation from Eastern Propane for the insurance benefits it paid to its subrogor to compensate the subrogor for damages that allegedly were caused by Eastern Propane alleged “inadequate” supplying of propane to 12 Mt. Locust Place. The clause is enforceable because the subrogors were sophisticated business people who were not forced to accept the terms of the agreement, as Eastern Propane was not the sole available source of propane that was used to heat 12 Mt. Locust Place. The agreement signed by the plaintiff’s subrogor expressly stated the limitation and also specifically stated that the subrogor had read and understood the agreement. There is no evidence of Eastern Propane Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 7 of 9 8 having taken “unfair advantage of the other party's weakness, vulnerability, or dependency, or used unfair or improper means to place the other party in such position.” The clause stating that Eastern Propane was not responsible for damages that were the consequence of the supply of propane from running out, therefore, is neither so one-sided that it is oppressive nor is unfairly surprising and should be upheld. To hold otherwise would be a disturbance of the allocation of risks to which the subrogor and Eastern Propane had agreed in the written contract. The plaintiff in asserting a subrogation action steps into the shoes of its subrogor, and it has no greater rights to actionable damages than the subrogor. The plaintiff’s subrogor is barred by the agreement it had with Eastern Propane from seeking consequential damages, and, under Massachusetts law, the plaintiff thus is likewise bound as a matter of law from seeking such damages. Further, the plaintiff’s counts alleging negligence fail as a matter of law for the reasons set forth above. The plaintiff here does not allege that Eastern Propane possessed a duty other than the duties imposed under the agreement it had with the plaintiff’s subrogor. The plaintiff has not asserted that obligations imposed upon Eastern Propane are independent of the agreement between Eastern Propane and its subrogor, and, thus, as a matter of law, the plaintiff’s count alleging negligence fails. Accordingly, because as set forth above the plaintiff’s subrogor agreed that Eastern Propane was not liable for the consequences of the supply of propane to 12 Mt. Locust Place being “exhausted”, the plaintiff’s action fails as a matter of law, and summary judgment should be granted on Counts I and II of the plaintiff’s Complaint. Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 8 of 9 9 WHEREFORE, the defendant, Eastern Propane Gas, Inc., requests that this Honorable Court allow its Motion for Summary Judgment and issue an Order dismissing the plaintiff’s action. THE DEFENDANT, EASTERN PROPANE GAS, INC., BY THEIR ATTORNEYS, DATED: November 29, 2016 /s/ Michael Palermo_________________ Michael Palermo, BBO# 641062 Email: mpalermo@BSCtrialattorneys.com BOYLE, SHAUGHNESSY & CAMPO,P.C. 695 Atlantic Avenue, 11th Floor Boston, MA 02111 Phone: (617) 451-2000 Fax: (617) 451-5775 Case 1:15-cv-12955-JGD Document 32 Filed 11/29/16 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS GREAT NORTHERN INSURANCE COMPANY a/s/o Anne Davis 15 Mountain View Road Warren, New Jersey 07059 Plaintiff, v. EASTERN PROPANE GAS INC. 131 Water Street Danvers, Massachusetts 01923 Defendant CIVIL ACTION NO.: JURY TRIAL DEMANDED COMPLAINT Plaintiff, Great Northern Insurance Company alleges and says: THE PARTIES 1. The Plaintiff is GREAT NORTHERN INSURANCE COMPANY (hereinafter “Great Northern”) which at all times material hereto, was a corporation incorporated in the state of Indiana whose principal place of business is located at 15 Mountain View Road, Warren, New Jersey. 2. The Defendant EASTERN PROPANE GAS, INC. (hereinafter “Eastern”) is a Massachusetts corporation whose principal place of business is, upon information and belief, 131 Water St. Danvers, Massachusetts. 3. At all times material hereto Great Northern provided insurance to Anne Davis (hereinafter “Ms. Davis”) for her home and property located at 12 Mount Locust Pl., Gloucester, Massachusetts (hereinafter the “Property”) under policy number 1090153003. Case 1:15-cv-12955-JGD Document 1 Filed 07/15/15 Page 1 of 5Case 1: 5-cv-1295 -JGD Document 32-1 Filed 1 /29/16 Page 1 of 8 2 JURISDICTION AND VENUE 4. This action is commenced pursuant to 28 U.S.C. § 1332, as the parties are citizens of diverse jurisdictions and the amount in controversy, exclusive of interests and costs, is in excess of Seventy-Five Thousand dollars ($75,000.00). 5. Venue in this action lies in this District pursuant to 28 U.S.C. § 1391, as the loss occurred in this District and the defendants are subject to personal jurisdiction within this District. FACTS RELEVANT TO ALL COUNTS 6. On or about January 23, 2015 water supply pipes at the Property froze and ruptured. 7. When the ruptured pipes thawed, water escaped and damaged the Property (hereinafter the “Event”). 8. As a result of the Event, Ms. Davis made a claim under the Great Northern policy. Great Northern has paid Ms. Davis in excess of $250,000.00 to repair and replace the damage caused to the Property by the Event and expects to pay additional sums. 9. As a result and to the extent of its payments and by operation of law Great Northern is subrogated to the rights of Ms. Davis. 10. At all times material hereto Eastern agreed to supply and deliver liquid propane gas to Ms. Davis on an automatic basis and was therefore responsible to maintain an adequate supply of liquid propane at the Property. 11. The Property was heated by liquid propane gas which was or should have been known to Eastern. 12. Upon information and belief, prior to January 23, 2015 the liquid propane gas supply at the Property was inadequate and as a result the heat at the Property failed to operate. Case 1:15-cv-12955-JGD Document 1 Filed 07/15/15 Page 2 of 5Case 1: 5-cv-1295 -JGD Document 32-1 Filed 1 /29/16 Page 2 of 8 3 13. Subsequent to January 23, 2015 it was determined that the liquid propane gas storage tank at the Property was empty. 14. As a direct and proximate result of the heat at the Property failing to operate due to inadequate liquid propane, the water pipes froze, burst and damaged the Property 15. As a result of Defendant’s negligence and breach of contract Ms. Davis’ Property was damaged and destroyed by the Event as more fully set forth in paragraphs 11, 12 and 13. As a result Great Northern paid Ms. Davis in excess of $250,000.00 and is subrogated to the extent of the payments. COUNT I NEGLIGENCE 16. Plaintiff repeats and incorporates by reference paragraphs 1 through 15 as though each were fully set forth at length herein. 17. The Events referred to in Paragraphs 14 were the proximate result of Eastern’s negligence in failing to: (a) comply with standards, codes, and regulations regarding the delivery and supply of liquid propane gas; (b) notify and warn Ms. Davis regarding the inadequate supply of liquid propane gas at the Property; (c) deliver an adequate supply of liquid propane to the Property; (d) measure properly the amount of liquid propane being delivered to Ms. Davis; (e) calculate properly the amount of liquid propane needed by Ms. Davis; (f) calculate properly the amount of liquid propane delivered to Ms. Davis; (g) hire, train and supervise competent employees; Case 1:15-cv-12955-JGD Document 1 Filed 07/15/15 Page 3 of 5Case 1: 5-cv-1295 -JGD Document 32-1 Filed 1 /29/16 Page 3 of 8 4 (h) insure an adequate supply of liquid propane to heat the Property; (i) properly deliver liquid propane to Ms. Davis; (j) maintain properly the equipment used for delivering liquid propane (k) maintain properly the equipment used for calculating the amount of liquid propane delivered. WHEREFORE, Plaintiff, GREAT NORTHERN INSURANCE COMPANY, demands judgment against Eastern for compensatory damages in an amount in excess of $250,000 together with prejudgment interest and the costs of prosecuting this action. COUNT II BREACH OF CONTRACT 18. Plaintiff repeats and incorporates by reference paragraphs 1 through 17 above by reference as though each were fully set forth at length herein. 19. At all times material hereto Eastern agreed to deliver to the Property an adequate supply of liquid propane on an automatic basis, the amount and frequency of delivery to be determined by Eastern, in a workmanlike manner to insure that the Property had sufficient liquid propane to supply, inter alia, heat. The Defendant breached its contract and failed to deliver an adequate supply of liquid propane gas and as a result the heat failed to operate and the water pipes froze and burst causing damage at the Property. 20. As a direct and proximate result of Eastern’s breach of contract the Event occurred and the Property was damaged and destroyed. Great Northern paid to repair and replace the Property and is, therefore, subrogated as a result and to the extent of the payments. WHEREFORE, Plaintiff, GREAT NORTHERN INSURANCE COMPANY, demands judgment against Titan for compensatory damages in an amount in excess of $250,000 together with prejudgment interest and the costs of prosecuting this action. Case 1:15-cv-12955-JGD Document 1 Filed 07/15/15 Page 4 of 5Case 1: 5-cv-1295 -JGD Document 32-1 Filed 1 /29/16 Page 4 of 8 5 Dated: July 14, 2015 LAW OFFICES OF PATRICK J. LOFTUS, III /s/ Patrick J. Loftus III_______________ Patrick J. Loftus, III 9 Park Street, Suite 500 Boston, MA 02108 Phone: (617) 723-7770 PRO HAC VICE OF COUNSEL PETER G. ROSSI, ESQUIRE COZEN O’CONNOR 1650 Market Street Philadelphia, PA 19103 215-665-2783 prosssi@cozen.com Case 1:15-cv-12955-JGD Document 1 Filed 07/15/15 Page 5 of 5Case 1: 5-cv-1295 -JGD Document 32-1 Filed 1 /29/16 Page 5 of 8 CIVIL COVER SHEET (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS (b) (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) (c) (Firm Name, Address, and Telephone Number) (If Known) II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF (U.S. Government Not a Party) or and (Indicate Citizenship of Parties in Item III) IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES PERSONAL INJURY PERSONAL INJURY PROPERTY RIGHTS LABOR SOCIAL SECURITY PERSONAL PROPERTY REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS FEDERAL TAX SUITS Habeas Corpus: IMMIGRATION Other: V. ORIGIN (Place an “X” in One Box Only) (specify) VI. CAUSE OF ACTION (Do not cite jurisdictional statutes unless diversity) VII. REQUESTED IN COMPLAINT: CLASS ACTION DEMAND $ JURY DEMAND: VIII. RELATED CASE(S) IF ANY (See instructions): FOR OFFICE USE ONLY Great Northern Insurance Company Patrick J. Loftus III, 9 Park St #200, Boston MA 02108 617-723-7770 Eastern Propane Gas, Inc 28 USC 1332 Property Damage 75,000.00 07/15/2015 Patrick J. Loftus III Case 1:15-cv-12955-JGD Document 1-1 Filed 07/15/15 Page 1 of 2Case 1:15-cv-12955-JGD Docu ent 32-1 Filed 11/29/16 Page 6 of 8 INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 I.(a) Plaintiffs-Defendants. (b) County of Residence. (c) Attorneys. II. Jurisdiction. . ; NOTE: federal question actions take precedence over diversity cases. III. Residence (citizenship) of Principal Parties. IV. Nature of Suit. V. Origin. VI. Cause of Action. Do not cite jurisdictional statutes unless diversity. VII. Requested in Complaint. VIII. Related Cases. Date and Attorney Signature. Case 1:15-cv-12955-JGD Document 1-1 Filed 07/15/15 Page 2 of 2Case 1:15-cv-12955-JGD Docu ent 32-1 Filed 11/29/16 Page 7 of 8 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS 1. Title of case (name of first party on each side only) 2. Category in which the case belongs based upon the numbered nature of suit code listed on the civil cover sheet. (See local rule 40.1(a)(1)). I. 410, 441, 470, 535, 830*, 891, 893, 895, R.23, REGARDLESS OF NATURE OF SUIT. II. 110, 130, 140, 160, 190, 196, 230, 240, 290,320,362, 370, 371, 380, 430, 440, 442, 443, 445, 446, 448, 710, 720, 740, 790, 820*, 840*, 850, 870, 871. III. 120, 150, 151, 152, 153, 195, 210, 220, 245, 310, 315, 330, 340, 345, 350, 355, 360, 365, 367, 368, 375, 385, 400, 422, 423, 450, 460, 462, 463, 465, 480, 490, 510, 530, 540, 550, 555, 625, 690, 751, 791, 861-865, 890, 896, 899, 950. *Also complete AO 120 or AO 121. for patent, trademark or copyright cases. 3. Title and number, if any, of related cases. (See local rule 40.1(g)). If more than one prior related case has been filed in this district please indicate the title and number of the first filed case in this court. 4. Has a prior action between the same parties and based on the same claim ever been filed in this court? YES NO 5. Does the complaint in this case question the constitutionality of an act of congress affecting the public interest? (See 28 USC §2403) YES NO If so, is the U.S.A. or an officer, agent or employee of the U.S. a party? YES NO 6. Is this case required to be heard and determined by a district court of three judges pursuant to title 28 USC §2284? YES NO 7. Do all of the parties in this action, excluding governmental agencies of the United States and the Commonwealth of Massachusetts (“governmental agencies”), residing in Massachusetts reside in the same division? - (See Local Rule 40.1(d)). YES NO A. If yes, in which division do all of the non-governmental parties reside? Eastern Division Central Division Western Division B. If no, in which division do the majority of the plaintiffs or the only parties, excluding governmental agencies, residing in Massachusetts reside? Eastern Division Central Division Western Division 8. If filing a Notice of Removal - are there any motions pending in the state court requiring the attention of this Court? (If yes, submit a separate sheet identifying the motions) YES NO (PLEASE TYPE OR PRINT) ATTORNEY'S NAME ADDRESS TELEPHONE NO. (CategoryForm9-2014.wpd ) Great Northern Ins Co v Eastern Propane Gas, Inc ✔ ✔ ✔ ✔ ✔ ✔ ✔ Patrick J. Loftus III 9 Park St, Suite 200, Boston MA 02108 617-723-7770 Case 1:15-cv-12955-JGD Document 1-2 Filed 07/15/15 Page 1 of 1Case 1:15-cv-12955-JGD Docu ent 32-1 Filed 11/29/16 Page 8 of 8 Case 1:15-cv-12955-JGD Document 32-2 Filed 11/29/16 Page 1 of 2 Case 1:15-cv-12955-JGD Document 32-2 Filed 11/29/16 Page 2 of 2 Case 1:15-cv-12955-JGD Document 32-3 Filed 11/29/16 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS GREAT NORTHERN INSURANCE COMPANY a/s/o Anne Davis Plaintiff, v. EASTERN PROPANE GAS INC. Defendant. Case No. 1:15-CV-12955-MLW DEFENDANT’S ANSWERS TO PLAINTIFF’S FIRST SET OF INTERROGATORIES ADD DEFINITIONS 1. “As used herein, “plaintiff” refers to plaintiff Great Northern Insurance Company a/s/o Anne Davis, its agents, servants and employees authorized to act on its behalf. 2. As used herein, “plaintiff’s insured” refers to Anne Davis 3. As used herein, “Eastern”, “You” or “Your” refers to the defendant, Eastern Propane Gas Inc., its agents, representatives and employees. 4. As used herein, “Subject Property” refers to the residence located at 12 Mount Locust Pl., Gloucester, Massachusetts 5. As used herein, “Incident” refers to water damage that occurred on or about January 23, 2015 at the Subject Property. 6. “Identify” or “Identification”, when used with reference to a person, means state the person’s name, last known business and residential addresses, and business and residential telephone numbers. When the term “Identify” or “Identification” is used with reference to a document, it means state the date of the document, the nature of the document (e.g. letter, Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 1 of 13 2 minutes of meeting, notes, etc.), the name, addresses and telephone numbers of each author and each recipient of the document, and the name, addresses and telephone numbers of all persons known to be in possession of the original or any copy of the document. 7. “Person” refers to a natural person as well as any other legal entity, including but not limited to a partnership and a corporation. 8. “Document” is used herein in their broadest sense and, unless specified otherwise, shall mean, refer to, and include: a. all written material or whatever nature, including, but not limited to, written material appearing, contained, embodied and/or stored in any medium upon which information is or can be recorded, including, for purposes of illustration and without limitation of the generality of the foregoing, all correspondence, reports, memoranda, notes (including reports, minutes, memoranda and notes of conversations and conferences), telephone messages, diaries, logs, calendars, financial reports, records, letters, envelopes, telegrams, messages, studies, analyses, books, articles, magazines, newspapers, booklets, circulars, bulletins, notices, instructions, accounts, pamphlets, photographs, pictures, diagrams, drawings, sketches, films, maps, work papers, calculations, arithmetical computations, minutes of all communications of any type (including inter and intra-office communications), purchase orders, invoices, written statements, statements of account, questionnaires, surveys, charts, graphs, recordings, punch cards, magnetic or electronic tapes, discs, data cells, drums, printouts, tape recordings, and other data compilations from which information can be obtained (translated if necessary into usable form), including drafts as well as final forms of the foregoing items, and including copies or reproductions of the foregoing upon which notations and writings have been made which do not appear on the originals; and b. all recordings of any oral statement made by a person, whether by audiotape, videotape, or any other form or mode of recording. 9. To the extent any interrogatory is objected to, please set forth the complete bases for any such objection. 10. If there is an objection made to the number of questions or requests, or any objection that any question or request may be unduly burdensome, please notify Plaintiffs’ Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 2 of 13 3 counsel immediately so that we may attempt to work with You to resolve such matters voluntarily. These Interrogatories are continuing in nature. Any information secured subsequent to the filing of Your answers which would have been included in the answers had it been known or available is to be supplied by supplemental answers. Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 3 of 13 4 INTERROGATORIES 1. Identify by name, address and occupation and/or job title, any person who assisted or was consulted in preparing the answers to these Interrogatories and, if applicable, the person’s official position or relationship with You. ANSWER: James C. Blake, District Manager, Eastern Propane Gas, Inc. 2. State whether You, or anyone acting at Your direction or on Your behalf, including Your insurance carrier investigated the Incident, and if the answer is “yes,” state: a. The name, address, and job classification of such investigator or investigators; b. The date or dates on which such investigations were made; c. The name and address of each person who was consulted, interviewed or questioned by such investigator or investigators; and, d. The name and address of every person from whom such investigator or investigators received a written report, and the location of each such report. ANSWER: Yes. Mr. David Williams of Energi, Inc., pre-suit, provided to plaintiff’s counsel the names of the individuals who were on site after the alleged incident and other items regarding the post incident events in an e-mail dated February 5, 2015. Also, please Eastern report dated January 23/24, 2015, produced. Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 4 of 13 5 3. Identify all persons known or believed by You or anyone acting on Your behalf, to have first-hand knowledge or information of the facts and circumstances of the Incident referred to in plaintiff’s Complaint ANSWER: See Answer No. 2, above. Also, please see all individuals lists in both plaintiff’s and defendant’s Rule 26(a) disclosures. 4. Identify Your agents, servants and/or employees who have knowledge regarding the terms of the contract between You and plaintiff’s insured for the supply and delivery of the liquid propane gas. ANSWER: James C. Blake and Brian Bourdeau of defendant. Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 5 of 13 6 5. Identify Your agents, servants and/or employees who worked in any capacity on the supply and delivery of the liquid propane gas from January 2014 to February 2015. ANSWER: As far as actual supply and delivery of propane gas to the subject property, Robert Flachbart, John Lipinski (deceased) and William St. Hillaire (former Eastern employee). 6. Describe how You learned about the Incident and Your response thereto. ANSWER: Upon information and belief, via a phone call from Rick the property manager of the subject property. Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 6 of 13 7 7. Upon learning of the Incident, identify Your employee(s) who responded to the Subject Property and describe what was done. ANSWER: Jim Blake, John Lipinski (deceased) and Bill St. Hillaire. Please also see Answer No. 2 and plaintiff’s and defendant’s Rule 26(a) disclosures. 8. Identify the equipment used to deliver the liquid propane gas to the Subject Property on the last delivery prior to the Incident. ANSWER: Please see Fuel delivery records for subject property Aug. 2012 - Nov. 2015, provided. An Eastern fuel delivery truck and its associated equipment, the equipment at the Subject Property and all its associated equipment and any other equipment the particular driver may utilize for the delivery. Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 7 of 13 8 9. Describe any and all maintenance performed on the equipment used to deliver the liquid propane gas to the Subject Property on the last delivery prior to the Incident. ANSWER: Upon information and belief, none. 10. Describe the operation of the equipment used to deliver the liquid propane gas to the Subject Property on the last delivery prior to the Incident. ANSWER: Upon information and belief, the delivery technician, Robert Flachbart, delivered the liquid propane gas per his normal delivery procedure. Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 8 of 13 9 11. Identify all persons whom you expect to call to testify at the trial of this case. ANSWER: Not yet determined. Plaintiff reserves the right to seasonably supplement. 12. Identify each person whom you intend to call to testify at trial as an expert witness, and with respect to each person identified, please state: a. the substance of the opinions to which the expert is expected to give testimony; b. the grounds for each opinion; and c. the person's background and experience which qualifies him or her as an expert. ANSWER: Not yet determined. Plaintiff reserves the right to seasonably supplement. Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 9 of 13 10 13. State the facts upon which You relied for each affirmative defense in Your Answer ANSWER: The affirmative defenses speak for themselves. In addition, please see facts in Eastern report dated January 23/24, 2015, produced. In addition, please see facts in additional photographs and documents produced via Rule 26(a) disclosure and in response to requests for production of documents. In particular, the fact that Eastern made a delivery of propane fuel to the property on January 5, 2015. In addition, please see specific language in the Agreement dated October 25, 1999 between Defendant and plaintiff’s subrogee, the Davis’ ,that states in pertinent part: “Eastern cannot and does not assume responsibility and is not accountable for the exhaustion of the LP Gas supply at the Location, or of the consequences of its exhaustion, direct or indirect,” and the acknowledgment of these terms and conditions below in said Agreement and the signature of Anne and/or Jim Davis agreeing to and acknowledging these terms and conditions. Defendant reserves the right to supplement as discovery is ongoing. 14. Describe what You believe caused the Incident. ANSWER: Please see Eastern report dated January 23/24, 2015, produced with response to requests for production. Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 10 of 13 11 15. Identify any and all policies of insurance which You contend cover or may cover you for the allegations set forth in plaintiff’s complaint, detailing as to such policy(ies) the name of the insurer, the number of the policy, the effective dates of the policy, the available limits of liability and any reservations of rights. ANSWER: HDI Gerling GL policy 3/15/14 – 3/15/15; Policy No. EGGCD000086614; $2 million As to Objections: Defendant, Eastern Propane Gas, Inc. By its attorney, /s/ Christopher L. Jefford Christopher L. Jefford (BBO# 633612) BONNER, KIERNAN, TREBACH & CROCIATA, LLP 200 Portland Street, 4th Floor Boston, MA 02114 (617) 426-3900 cjefford@bonnerkkienan.com January 25, 2016 Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 11 of 13 Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 12 of 13 LEGAL\24650277\1 CERTIFICATE OF SERVICE I, Christopher L. Jefford, hereby certify that on January 25, 2016 a true copy of the above document was served by e-mail on counsel for plaintiff. /s/ Christopher L. Jefford___ Christopher L. Jefford Case 1:15-cv-12955-JGD Document 32-4 Filed 11/29/16 Page 13 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Case No. 1:15-CV-12955-MLW ******************************** GREAT NORTHERN INSURANCE * COMPANY a/s/o ANNE DAVIS * Plaintiff * v. * EASTERN PROPANE GAS, INC. * Defendant * ******************************** 30(b)(6) DEPOSITION OF: JAMES CONROY BLAKE BONNER KIERNAN TREBACH & CROCIATA, LLP 200 Portland Street, 4th Floor Boston, Massachusetts January 27, 2016 9:52 a.m. Ellen M. Muir Court Reporter Case 1:15-cv-12955-JGD Document 32-5 Filed 11/29/16 Page 1 of 5 JAMES CONROY BLAKE 2 (Pages 2 to 5) 2 1 APPEARANCES: 2 3 Representing the Plaintiff: 4 COZEN O'CONNOR 5 One Liberty Place 6 Philadelphia, PA 19103 7 BY: PETER G. ROSSI, ESQ. 8 (215) 665-2783 FAX (215) 701-2483 9 prossi@cozen.com 10 11 Representing the Defendant: 12 BONNER KIERNAN TREBACH & CROCIATA LLP 13 200 Portland Street, 4th Floor 14 Boston, MA 02114 15 BY: CHRISTOPHER L. JEFFORD, ESQ. 16 (617) 426-3900 FAX (617) 426-0380 17 cjefford@bonnerkiernan.com 18 19 20 21 22 23 24 3 1 I N D E X 2 3 WITNESS: JAMES CONROY BLAKE 4 5 EXAMINATION BY: PAGE: 6 Mr. Rossi 4 7 8 EXHIBIT: DESCRIPTION: PAGE: 9 1. Deposition Notice 17 10 2. Three-page document (delivery ticket, 11 Driver's log, account summary) 22 12 3. Eastern Propane Internet website sheet 41 13 4. Photograph 59 14 5. Letter of Agreement, 04/16/99 67 15 6. Terms and conditions of delivery 16 Supply, 10/25/99 67 17 7. List of deliveries with charges 18 & dates 79 19 8. Delivery record 79 20 9. Report by Mr. Blake 91 21 10. Photograph 104 22 11. Photograph 104 23 24 (Exhibits retained by Attorney Rossi) 4 1 S T I P U L A T I O N S 2 3 It is hereby stipulated and agreed by and between 4 counsel for the respective parties that the witness shall 5 read and sign the deposition transcript under the pains and 6 penalties of perjury within 30 days of receipt of said 7 transcript; otherwise, it shall be deemed to have been duly 8 waived. 9 It is further stipulated and agreed that all 10 objections, including motions to strike testimony, shall be 11 reserved until the time of trial. 12 13 14 15 16 17 18 19 20 21 22 23 24 * * * * * 5 1 JAMES CONROY BLAKE, Deponent, having first been 2 satisfactorily identified and duly sworn, deposes and 3 states as follows: 4 5 EXAMINATION BY MR. ROSSI: 6 7 Q. Sir, could you state your name, please? 8 A. James Conroy Blake. 9 Q. Mr. Blake, my name is Peter Rossi; I represent 10 the plaintiff, the Great Northern Insurance Company, in a 11 lawsuit brought against your employer, Eastern Propane. Do 12 you understand that? 13 A. Yes. 14 Q. You have been identified as a corporate 15 designee of the defendant, Eastern Propane, and asked to 16 come give your deposition about the events that surrounded 17 a pipe or pipes freeze at the Davis home in Gloucester, 18 Massachusetts. Do you understand that? 19 A. Yes. 20 Q. Okay. And I'm going to be asking you a series 21 of question. If you don't understand my question, let me 22 know; if you answer my question, I'm going to assume you 23 understood it. 24 A. Yes. Case 1:15-cv-12955-JGD Document 32-5 Filed 11/29/16 Page 2 of 5 JAMES CONROY BLAKE 19 (Pages 70 to 73) 70 1 the agreement relative to underground tanks. The second 2 document is -- 3 MR. JEFFORD: Can you just identify them by 4 exhibits. 5 A. Exhibit 6, which I'm referring to as the 6 second. 7 Q. Yes. 8 A. Is our standard terms and conditions related 9 "to any and all equipment, whether underground or above 10 ground, including delivery and service," verbiage. 11 Q. And Mr. Davis signed both of these documents? 12 A. To the best of my knowledge. 13 Q. And has he signed any documents after these? 14 A. I don't know. 15 Q. Is there a different terms and conditions of 16 and for the delivery and supply of liquid propane in use 17 today? 18 MR. JEFFORD: For the Davis's or general? 19 MR. ROSSI: No, for anybody. 20 Q. That your company uses. 21 A. I would have to compare the documents. We 22 continually update and mail out terms and conditions to our 23 customers. 24 Q. Now, you can see that one, two, three, four -- 71 1 the fifth paragraph says -- 2 MR. JEFFORD: On Exhibit? 3 MR. ROSSI: I'm sorry. 4 Q. Exhibit 6. "In recognition that the depletion 5 of the supply of LP gas at the location varies with the 6 usage demands of the customer and that the customers use 7 and demands will fluctuate in relation to the customers 8 fuel requirements, Eastern cannot and does not assume 9 responsibility and is not accountable for the exhaustion of 10 LP gas supply at the location with the consequences of its 11 exhaustion direct or indirect." Why is that in there? 12 MR. JEFFORD: Objection. 13 A. Because we cannot control what an individual 14 customer does at their home. There are a lot of factors 15 that we don't have control over. People move in and out. 16 There are certain appliances that have unpredictable use 17 based on human element and the human factor, and we 18 can't -- there's no algorithm for human behavior. 19 Q. But you don't mention that in your materials 20 on the Internet, do you? 21 MR. JEFFORD: Objection. 22 Q. That you're not responsible if somebody runs 23 out of gas? 24 MR. JEFFORD: Objection. 72 1 A. That's the document that I was given. 2 Q. Yes. You probably have it in your pile. I 3 think it's Blake 3. 4 A. What was your question again? 5 Q. My point I'm trying to explore is that in the 6 10/25/99 documents you indicate that Eastern can't be 7 responsible if somebody runs out of gas. But in the 8 Blake 3 documents downloaded from the Internet, you never 9 mention that, do you? 10 MR. JEFFORD: Objection to the form. 11 A. I believe there is language here that relates 12 to that on the out of fuel. 13 Q. Read it, if you will, read the language. 14 A. The paragraph goes "If you require emergency 15 delivery, please call us at 800-523-5237 now. Be prepared 16 with your account number, check your latest bill and tank 17 percent or gauge level. If you are a will-call customer, 18 anyone not on automatic delivery, were crying an emergency 19 delivery, or your delivery has been delayed due to credit 20 reasons, be aware that the deliveries outside of normal 21 delivery schedule will be subject to a special fee. 22 If you are out of gas, Eastern will need to 23 enter your home to perform a leak test. This ensure the 24 integrity of your propane system when your gas service is 73 1 restored. If you are not on automatic delivery, customers 2 in good standing, this is a chargeable service. Regardless 3 of account status, this practice is required by Eastern for 4 your safety and to be in compliance with the national fuel 5 gas code." 6 Q. Which part do you think says that Eastern 7 won't be responsible if you run out of gas? 8 MR. JEFFORD: Objection to form. 9 A. I believe this addresses that there could be 10 charges to the customer. If there are charges to the 11 customer, that's clearly not Eastern's responsibility. 12 Q. So when I read from the 10/25/99 document that 13 Eastern cannot and does not assume responsibility and is 14 not accountable for the exhaustion of LP gas supplied at 15 the location, you think that that's the same thing that you 16 just read to me? 17 MR. JEFFORD: Objection to form. 18 A. It's not exactly the same wording. 19 Q. It's not anything like it, is it? 20 MR. JEFFORD: Objection. 21 A. I think they both refer to out of gas. I 22 don't -- you don't have all the website information here. 23 I can't honestly answer a question with only a -- I'm not 24 familiar with the entire website. Case 1:15-cv-12955-JGD Document 32-5 Filed 11/29/16 Page 3 of 5 JAMES CONROY BLAKE 20 (Pages 74 to 77) 74 1 Q. So you think there might be something on your 2 website that says Eastern can't be responsible, won't be 3 held responsible if you run out of gas? 4 MR. JEFFORD: Objection to form. 5 A. I haven't read the website. 6 Q. Is that Eastern's policy? 7 MR. JEFFORD: Objection to form. 8 A. Policy to read the website? 9 Q. No. Is it Eastern's policy that if a customer 10 runs out of gas, Eastern won't be responsible for any of 11 the direct or indirect consequences? 12 MR. JEFFORD: Objection to the form. 13 A. It's standard language. 14 Q. My question is, is it Eastern's policy? 15 A. Yes. 16 MR. JEFFORD: Objection to form. 17 Q. It should -- 18 A. To the best -- 19 Q. -- be on the Internet, right? 20 MR. JEFFORD: One at a time. Objection to the 21 form. You can answer, if you heard his question. 22 Q. Then it should be on the Internet website? 23 MR. JEFFORD: Objection to form. 24 A. I'm not in charge of the website. 75 1 Q. Would you agree that the policies of Eastern 2 are on the website? 3 A. No. 4 MR. JEFFORD: Objection to form. 5 Q. Is there somewhere that there's a policy book 6 that that would be included in? 7 A. On the agreement given to the customer. 8 Q. Does this indicate that there has been a 9 problem with your customers running out of gas? 10 MR. JEFFORD: Objection to form. I think it's 11 vague. I don't know what you're saying when you say 12 "does this indicate." What are you referring to? 13 Q. Black 6, this paragraph that we've been 14 talking about. 15 A. No. 16 Q. It has happened? 17 MR. JEFFORD: Objection to the form. 18 A. It has happened that people run out of gas. 19 Q. People on automatic delivery run out of gas? 20 A. Yes. 21 Q. And how can that happen? 22 MR. JEFFORD: Objection to the form. 23 A. It happens for many reasons as we stated 24 prior. 76 1 Q. Okay. And how can you protect against that? 2 MR. JEFFORD: Objection to the form. 3 Q. Isn't that what the automatic delivery system 4 is designed to protect against? 5 MR. JEFFORD: Objection to the form. 6 A. The automatic delivery system or scheduled 7 delivery system is designed to deliver based on a 8 historical usage. 9 Q. Isn't one of the -- 10 A. Nothing is -- you can't a hundred percent 11 ensure things outside of people's control. 12 Q. We looked at this picture a moment ago of the 13 tank. I think you still have it there. What's the purpose 14 of the regulator? 15 MR. JEFFORD: For the record, it's Blake 4, 16 and it's the top photo. 17 MR. ROSSI: Right. 18 A. The red regulator reduces -- reduces and 19 controls the pressure in the gas line going to the home. 20 Q. Does it increase, reduce, otherwise, manage 21 the pressure; what does it do? 22 A. It manages the pressure. 23 Q. And is the purpose to make sure that the gas 24 that's flowing from the tank into the home is gas and not a 77 1 liquid? 2 A. It maintains pressure. It's not a device to 3 determine liquid or vapor. 4 Q. But the maintenance of that pressure does that 5 ensure that the gas is a gas and not a liquid? 6 MR. JEFFORD: Objection to form. 7 A. That's -- the device is only designed to 8 determine pressure in the line. 9 Q. Okay. Were you -- I'm sorry for asking this 10 because I didn't before. But you were employed by Eastern 11 in '99? 12 A. Yes. 13 Q. And did you have anything to do with the Davis 14 account back in '99? 15 A. No. 16 Q. And have you ever been to the Davis property? 17 A. Yes. 18 Q. The one in question? 19 A. Yes. 20 Q. And on how many occasions? 21 A. Two or three, I'm not positive. 22 Q. Were they all in relation to this incident? 23 A. Yes. 24 Q. And when was the last time you were there, was Case 1:15-cv-12955-JGD Document 32-5 Filed 11/29/16 Page 4 of 5 JAMES CONROY BLAKE 21 (Pages 78 to 81) 78 1 it with Mr. Jefford? 2 A. Yes. 3 Q. And when was the time before that? 4 A. I don't recall exactly if I went back directly 5 after the incident or not. 6 Q. So you were there twice at the time of the 7 incident? 8 MR. JEFFORD: Objection to the form. 9 A. I was there at time of the incident. I don't 10 recall if I went back shortly after. 11 Q. The agreements that we talked about, 12 Exhibits 5 and 6, do you believe that those were enforced 13 in January of 2015? 14 A. Yes. 15 Q. And were there any other agreements with the 16 Davis Family for the delivery of the propane or the 17 maintenance of the equipment there? 18 A. I'd have to know if they were sent updated 19 terms and conditions via the mail. 20 Q. You wouldn't have a record of that? 21 A. Our safety department would have a record of 22 that. 23 Q. Have you looked through that? 24 A. I looked in their folder, their customer 79 1 folder; and this was the only documents in the folder. 2 Q. What else -- that was the only documents in 3 the folder. Was your report in the folder? 4 A. No. 5 Q. Were you aware of the liquid propane tank at 6 the Davis property ever running out of gas prior to 7 January 22nd or 23rd, 2015? 8 MR. JEFFORD: Objection to the form. 9 A. I was not aware. 10 11 (Exhibits 7 & 8, marked) 12 13 Q. Mr. Blake, I'm handing you two documents 14 Exhibit 7 and 8. Can you take a look at those documents? 15 What is 7? 16 A. It appears to be a list of deliveries with 17 charges. 18 Q. And dates? 19 A. Correct. 20 Q. And then a column "date since last delivery"? 21 A. Yes. 22 Q. Do you know who prepared this document and 23 why? 24 A. I don't know who prepared that document. 80 1 Q. Have you ever seen it before? 2 A. I don't believe so. 3 Q. How about Blake 8? 4 A. This is a delivery record. 5 Q. And is this a document that's ordinarily kept 6 by Eastern? 7 A. It would be produced out of our system, 8 computer system. 9 Q. And the actual shipped column is the delivery 10 date, correct? 11 A. Correct. 12 Q. So, for example, if you would, find the 13 1/5/2015, because we've already talked about that. It 14 indicates there was 436 gallons delivered, correct? 15 MR. JEFFORD: Can I point it to him? 16 MR. ROSSI: Sure. 17 A. Yes. 18 Q. And the next column is ITA. what does that 19 mean? 20 A. In tank amount. 21 Q. What does zero mean? 22 A. Zero means the tank was full at the completion 23 of the delivery. 24 Q. Zero means it's full? 81 1 A. Correct. 2 Q. Why is that? 3 A. Because that's the unit of measure that goes 4 there. Only as you -- only information goes in there is if 5 the tank is not full. 6 Q. ITA in that column means "in tank amount," 7 correct? 8 A. Correct. 9 Q. And it's your testimony that zero means it's 10 full? 11 A. Correct. 12 Q. Okay. And the next column is "DD" log? 13 A. Correct. 14 Q. And what does "DD" log mean? 15 A. It's historical numbers that are used relative 16 to how many degree days have occurred during the delivery 17 period. 18 Q. What's a degree day? 19 A. A degree day is a unit of measure based on 20 65 degrees, 60 to 65 degrees, depending on the -- and the 21 temperature outside. So if you were at the 60 degree day, 22 calculation at 50 degrees, it would equal ten; that ten 23 would be added to a number in this column on any given day. 24 Q. And does this column have something to do with Case 1:15-cv-12955-JGD Document 32-5 Filed 11/29/16 Page 5 of 5 Case 1:15-cv-12955-JGD Document 32-6 Filed 11/29/16 Page 1 of 5 The Commonwealth of Massachusetts William Francis Galvin Minimum Fee: $100.00 Secretary of the Commonwealth, Corporations Division One Ashburton Place, 17th floor Boston, MA 02108-1512 Telephone: (617) 727-9640 Annual Report (General Laws, Chapter 156D, Section 16.22; 950 CMR 113.57) Identification Number: 042460172 1. Exact name of the corporation: NEW BALANCE ATHLETIC SHOE, INC. 2. Jurisdiction of Incorporation: State: MA Country: 3,4. Street address of the corporation registered office in the commonwealth and the name of the registered agent at that office: Name: JOHN K. WITHEE No. and Street: 20 GUEST ST. City or Town: BOSTON State: MA Zip: 02135 Country: USA 5. Street address of the corporation's principal office: No. and Street: 20 GUEST ST. City or Town: BOSTON State: MA Zip: 02135 Country: USA 6. Provide the name and addresses of the corporation's board of directors and its president, treasurer, secretary, and if different, its chief executive officer and chief financial officer. Title Individual Name First, Middle, Last, Suffix Address (no PO Box) Address, City or Town, State, Zip Code PRESIDENT ROBERT DEMARTINI 20 GUEST STREET BOSTON, MA 02135 USA TREASURER KEVIN DOYLE 20 GUEST STREET BOSTON, MA 02135 USA SECRETARY PAUL R. GAURON 20 GUEST STREET BOSTON, MA 02135 USA CEO ROBERT DEMARTINI 20 GUEST STREET BOSTON, MA 02135 USA CFO JOHN K. WITHEE 20 GUEST STREET BOSTON, MA 02135 USA DIRECTOR JAMES S. DAVIS 20 GUEST STREET BOSTON, MA 02135 USA DIRECTOR EDWARD STANGER 20 GUEST STREET BOSTON, MA 02135 USA DIRECTOR PAUL R. GAURON 20 GUEST STREET BOSTON, MA 02135 USA DIRECTOR ANNE M. DAVIS 20 GUEST STREET BOSTON, MA 02135 USA 7. Briefly describe the business of the corporation: MA SOC Filing Number: 201512883280 Date: 1/30/2015 11:14:00 AM Case 1:15-cv-12955-JGD Document 32-6 Filed 11/29/16 Page 2 of 5 MANUFACTURE AND SALE OF ATHLETIC SHOES AND APPAREL 8. Capital stock of each class and series: Class of Stock Par Value Per Share Enter 0 if no Par Total Authorized by Articles of Organization or Amendments Num of Shares Total Par Value Total Issued and Outstanding Num of Shares CWP $1.00000 150,000 $150,000.00 4,000 9. Check here if the stock of the corporation is publicly traded: 10. Report is filed for fiscal year ending: 12/31/ 2014 Signed by KEVIN DOYLE , its OTHER OFFICER on this 30 Day of January, 2015 © 2001 - 2015 Commonwealth of Massachusetts All Rights Reserved Case 1:15-cv-12955-JGD Document 32-6 Filed 11/29/16 Page 3 of 5 Case 1:15-cv-12955-JGD Document 32-6 Filed 11/29/16 Page 4 of 5 Case 1:15-cv-12955-JGD Document 32-6 Filed 11/29/16 Page 5 of 5 MA SOC Filing Number: 200796558280 Date: 09/10/2007 4:52 PM Case 1:15-cv-12955-JGD Document 32-7 Filed 11/29/16 Page 1 of 3 Case 1:15-cv-12955-JGD Document 32-7 Filed 11/29/16 Page 2 of 3 THE COMMONWEALTH OF MASSACHUSETTS I hereby certify that, upon examination of this document, duly submitted to me, it appears that the provisions of the General Laws relative to corporations have been complied with, and I hereby approve said articles; and the filing fee having been paid, said articles are deemed to have been filed with me on: WILLIAM FRANCIS GALVIN Secretary of the Commonwealth MA SOC Filing Number: 200796558280 Date: 09/10/2007 4:52 PM September 10, 2007 4:52 PM 225299-1-0 Case 1:15-cv-12955-JGD Document 32-7 Filed 11/29/16 Page 3 of 3 Case 1:15-cv-12955-JGD Document 32-8 Filed 11/29/16 Page 1 of 6 Case 1:15-cv-12955-JGD Document 32-8 Filed 11/29/16 Page 2 of 6 Case 1:15-cv-12955-JGD Document 32-8 Filed 11/29/16 Page 3 of 6 Case 1:15-cv-12955-JGD Document 32-8 Filed 11/29/16 Page 4 of 6 Case 1:15-cv-12955-JGD Document 32-8 Filed 11/29/16 Page 5 of 6 Case 1:15-cv-12955-JGD Document 32-8 Filed 11/29/16 Page 6 of 6 1 CERTIFICATE OF SERVICE I, Michael Palermo, hereby certify that the foregoing was this day, November 29, 2016, forwarded to the following parties by electronic transmission in accordance with the Court's Administrative Procedures for Electronic Case Filing: Counsel for Plaintiff Peter G. Rossi, Esq. Cozen O’Connor 1900 Market Street Philadelphia, PA 19103 Patrick J. Loftus, III, Esq. Law Offices of Patrick Loftus 9 Park Street, 5th Floor Boston, MA 02108 DATED: November 29, 2016 /s/ Michael Palermo Michael Palermo, Esq., BBO# 641062 Email: mpalermo@BSCtrialattorneys.com BOYLE, SHAUGHNESSY & CAMPO, P.C. 695 Atlantic Avenue, 11th Floor Boston, MA 02111 Phone: (617) 451-2000 Fax: (617) 451-5775 Case 1:15-cv-12955-JGD Document 32-9 Filed 11/29/16 Page 1 of 1