CLAUDIA MARIA FIGUEROA DE LANDAVERDE, ET AL.
SANTIAGO NAVARRO, ET AL. ELIZABETH GOMEZ, ET AL.
PARRISH SERVICES, INC., ET AL.
Circuit Court for Prince George's County Consolidated
Case Nos. CAL14-29078, 15-08622, 15-08623, 15-08624, and
Graeff, Leahy, Salmon, James P. (Senior Judge, Specially
evening of April 23-24, 2012, five people were residing at a
house located at 722 Shelby Drive, Oxon Hill, Maryland. All
five died that evening of carbon monoxide poisoning. The
cause of that poisoning was that some unknown person or
persons had negligently connected the home's bathroom
ventilation fan to the flue that was supposed to carry carbon
monoxide gas from the boiler and water heater up through the
ceiling and through the roof. On the evening in question,
someone evidently left the bathroom fan on, and later that
evening, due to the improper fan connection, carbon monoxide
gas backed up and entered the rooms occupied by the victims.
Those victims were: Sonia Chavez, Oscar Chavez, Nora Leiva,
Francisco Gomez, and Nelson Landaverde.
decedents' spouses and children filed in the Circuit
Court for Prince George's County complaints for
negligence and wrongful death against Homesure Services, Inc.
("Homesure"), Safeguard Properties, LLC
("Safeguard"), Caviness Mechanical Services
("Caviness"), and Parrish Services Inc.
("Parrish"). In addition, the spouses and children
of Landaverde and Gomez filed actions against Santiago
Navarro, one of the owners of the house where the carbon
monoxide poisoning occurred. Subsequently, the claims against
Homesure and Safeguard were dismissed without prejudice.
Caviness, and Parrish filed motions for summary judgment.
After a hearing on October 3, 2016, the circuit court denied
Navarro's motion for summary judgment and granted summary
judgment in favor of Caviness and Parrish. Subsequently,
pursuant to a voluntary stipulation, the actions against
Navarro were dismissed without prejudice. In these
consolidated cases, the spouses and children of the victims
noted timely appeals.
present two questions for our consideration which we have
rephrased, slightly, and reordered as follows:
I. Did the circuit court err in finding that a home warranty
contract between a home owner and a warranty company absolved
Caviness and Parrish from any tort duty to address rust and
holes on the flue pipes of a heating and hot water system at
722 Shelby Drive?
II. Did the circuit court err in finding that Caviness and
Parrish had no tort duty, as a matter of law, to address rust
and holes on the flue pipes of the heating and hot water
systems they worked on at 722 Shelby Drive?
reasons set forth below, we answer both questions in the
affirmative and reverse the judgments entered in favor of
Caviness and Parrish.
February 2010, Sonia Chavez and Santiago Navarro purchased a
single family home located at 722 Shelby Drive in Oxon
Hill. Navarro never lived at 722 Shelby Drive.
There was evidence that he was a friend of Sonia and Oscar
Chavez and had agreed to purchase the home with Mrs. Chavez
because Mr. Chavez had a bad credit history.
in February 2010, Mrs. Chavez and her husband lived in the
home and rented rooms to Nelson Landaverde and Francisco
Gomez. At the time of the incident giving rise to this case,
Mrs. Chavez's sister, Nora Leiva, was also staying in the
decedents' spouses and children filed identical suits
against Caviness and Parrish alleging that fatal amounts of
carbon monoxide entered the home as the result of an
improperly installed bathroom fan that had been spliced into
the flue used to vent exhaust from the boiler and hot water
heater. The date the fan was installed is
time Mrs. Chavez and Mr. Navarro purchased the home, they
entered into a home warranty agreement with Homesure that
covered repairs to a number of appliances in the home,
including the heating system and hot water heater. The
warranty agreement provided that Homesure would "pay the
covered costs to repair or replace the items listed as
covered . . . if any such items become inoperable during the
term of this Agreement due to mechanical failure caused by
routine wear and tear, subject to the terms and conditions of
this Agreement." The warranty agreement covered the
mechanical components of one primary central heating system,
but did not cover "[c]himneys, flues, and
liners[.]" The agreement also covered the mechanical
parts and components of one water heater, but did not include
"flues; vent pipes/lines[.]" If a claim was
covered, Homesure agreed to provide Mrs. Chavez "with a
referral to an independent contractor," whom Homesure
had the "sole authority" to select.
relationship between Caviness and Parrish and the warranty
company, Homesure, was governed by a service provider's
agreement pursuant to which Caviness and Parrish agreed to
collect deductibles and excess fees from customers and to
bill Homesure directly at pre-negotiated discounted
rates. All parties agreed that Caviness and
Parrish were independent contractors.
March 1, 2010, Mrs. Chavez contacted Homesure and reported
that the heating system was not working properly. Homesure
arranged for Caviness to respond to Mrs. Chavez's
complaint. On March 2, 2010, Caviness employee, Darren Baine,
went to the home, determined that there was a defective pilot
control module on the boiler, and the next day, replaced it.
months later, on June 3, 2010, Mrs. Chavez contacted Homesure
to report that the hot water heater was not working properly.
On this occasion, Homesure arranged for Parrish to respond to
Mrs. Chavez's complaint.
4, 2010, Parrish employee, Robert Rhoades, went to the home,
determined that the pilot light would not stay lit, and
ordered a replacement gas control valve. He returned to the
home on June 10, 2010 and installed the new valve.
motions court was provided with a picture, taken by a home
inspector in 2008, that appellants claim shows rust on the
flue pipe from which the heater and boiler vented.
appellants claimed that the service technicians from Caviness
and Parrish should have discovered that there were holes and
rust on the flue through which the exhaust from both the
boiler and hot water heater vented, warned the occupants of
the home that carbon monoxide poisoning could occur if the
flue was structurally compromised as a result of the rust and
holes, and fixed the damaged flue pipe. They also claimed
that the service technicians from Caviness and Parrish should
have investigated the cause of the rust-damaged flue pipe or
informed the occupants of the home that the boiler and hot
water heater were not safe to use until such investigation
was performed. Further, they asserted that a competent
investigation into the cause of the rust-damaged flue pipe
would have revealed the life-threatening connection between
the bathroom ventilation fan exhaust and the flue for the
boiler and hot water heater.
Baine, the service technician from Caviness who performed
service on the heating system at 722 Shelby Drive, in the
early part of March 2010, died in September 2011. The only
document pertaining to the work he performed was an invoice.
corporate representative and owner, David Caviness, testified
in a deposition that all of his company's work in 2010
was obtained through home warranty companies including, but
not limited to, Homesure. He explained that typically there
was an established price limit for repairs and Caviness could
perform any work with a cost under that limit while more
expensive work required pre-authorization from the warranty
company. Mr. Caviness stated that his company's employees
were never instructed not to look for problems with flue
pipes even though flue pipes were never covered by any of the
home warranty companies for whom his company worked. On that
point, he gave the following deposition testimony:
[Mr. Caviness]: That's how you make your money. Go in and
look for a problem, especially a problem that's not
covered, that's when you make your money with the
warranty company. Try to find as many problems as you can
that's lack of maintenance, something that's not
covered under the contract. That's the only way you make
money with the warranty companies. Now, it's between you
and your - your - the homeowner.
[Plaintiffs' Counsel]: If I understand correctly, the
only - you're saying the only way you make money is,
essentially, by billing somebody, other than the home
[Mr. Caviness]: Right.
[Plaintiffs' Counsel]: Okay.
[Mr. Caviness]: Basically, the home warranty companies, they
give them out when they - people buy the house and you're
hoping to God that they break away from the warranty company
and they - they use your services afterwards, you know. But
some people are lifetime warranty people and, you know, when
you go into jobs with the Homesure, they didn't cover
maintenance issues, improper installations. They didn't
cover none of that, flue pipes.
And then, if you go in and you see a problem, bam, now you
got - hey, get right on the phone. Look, you need this, this,
this. And then the warranty company will say, well, this is
not covered, we'll give the homeowner a call, let them
know this is - well, how much is your COD estimate. Give them
a price, they call.
Then after they take care of that, you call the warranty
company - or the customer and say, hey, look, we can come out
and do the job, so ….
Caviness acknowledged that neither his company nor his
employees were employees of Homesure and that the warranty
company did not give directions or guidance about specific
jobs or control the manner in which the Caviness service
technicians performed their work. Mr. Caviness never
discussed with the late Mr. Baine the service that was
provided at 722 Shelby Drive.
Caviness testified that his company did not provide any
special training for its service technicians, but he
acknowledged that any required flue work below the ceiling
level would be something that Caviness employees would be
expected to address. Mr. Caviness was not familiar with any
industry standard that would require him to inspect an entire
flue above the ceiling and denied that Caviness was required
to inspect above the ceiling at 722 Shelby Drive. Mr.
Caviness admitted that, if a flue pipe leading from a furnace
had rust or corrosion on it, a Caviness employee would be
expected to shut down the furnace. The following exchange
between plaintiffs' counsel and Mr. Caviness is relevant:
Q. Did - did Caviness, at the time in 2010, have any kind of
checklist or procedures that its technicians were supposed to
follow when figuring out what the problem was - was with a
furnace like this one?
[Mr. Caviness]: No. Not with a service tech that's well
trained. You know what your procedures are. You know what
your obligations are.
Q. I guess I understand that you're - you're
basically relying on the tech to exercise his kind of -
Q. - professional judgment. Caviness wasn't providing any
special training policies, procedures, regarding what its
employees should do?
A. No. Every tech - every tech - every, you know, when
I've worked for people, I've never had any, you know,
you go in and you know what you're doing, you're
licensed and you know what you're checking. You know the
piece of equipment you're working on and, you know,
you're checking your safeties, your flues, it's
typical with anybody in this trade.
Q. If the flues connected to the furnace showed signs of rust
or corrosion, what would a Caviness employee have been
expected to do?
A. Hypothetical, refer them to a chimney company to have
their chimney checked.
Q. Okay. And why would they do that?
[Defense Counsel]: Objection.
[Mr. Caviness]: What?
Q. Why would they do that?
A. Just, I mean, if you get water coming down your chimney
because your caps come off, you get a lot of acetic acid
because the flue product's mixing with - with your - with
water, very acidic. It will eat your, you know, just eat the
Q. My question was in 2010, if a Caviness employee saw rust
or corrosion on the flue pipe leading from the furnace, what
would they be expected to do?
[Defense Counsel]: Objection.
A. We'd shut the furnace down.
Q. Why would you do that?
[Defense Counsel]: Objection.
A. It all depends on - you know, it all depends on the
integrity of the pipe. I mean, if you got rust on the outside
of the pipe, that don't necessarily mean that the
integrity of the pipe's bad or anything. You know, you
get water line and water drips. You get condensation in a
basement. I mean, its - its - its integrity of the pipe. If
the pipe's falling apart, you shut it down.
B. Rhoades, III, the service technician who responded to 722
Shelby Drive on behalf of Parrish, acknowledged that there
was no difference in the way he would perform his job if he
was working on a home warranty plumbing job or a job for a
customer who had called Parrish directly for service. He also
acknowledged that as a plumber, he received training about
the potential danger to human health that can result from
water heaters creating carbon monoxide. Although he had no
recollection of his 2010 visit to 722 Shelby Drive, Mr.
Rhoades believed, based on his standard practices, that he
would have looked at the flue as part of his service of the
water heater. At his deposition Mr. Rhoades testified:
[Plaintiff's Counsel]: I want to ask you a couple more
questions about the - what we were just really talking about
. . . the things you were trained in and kind of your
standard practices that you - you would follow in your job.
Let me ask you some of these and you tell me if you agree
with me or not. If you were to find out that a bathroom fan
vent was connected to the flue from a water heater or water
boiler, would you understand that that could block the
exhaust of carbon monoxide from a house?
[Mr. Rhoades]: Yes.
Q. Okay. Would you agree with me that a corroded or rusted
flue attached to the boiler would be a sign of excessive
moisture in the flue?
Q. Okay. Would a possible cause of that kind of excessive
moisture be a - let's say, an improperly-connected
bathroom fan vent?
[Defense Counsel]: Objection.
[Defense Counsel]: Objection to the ...