                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-2031



ST. PAUL FIRE & MARINE INSURANCE COMPANY, as
subrogee   of  A.G.   Van  Metre   Services,
Incorporated,

                                             Plaintiff - Appellee,

           versus


WITTMAN MECHANICAL CONTRACTORS, INCORPORATED,

                                            Defendant - Appellant,

           and


MID-SOUTH BUILDING SUPPLY COMPANY, INCORPORATED;
DAE SOP YOON,

                                                          Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.  Walter D. Kelley, Jr.,
District Judge. (1:04-cv-01303-WDK)


Argued:   November 1, 2007              Decided:     February 6, 2008


Before NIEMEYER, MICHAEL, and MOTZ, Circuit Judges.


Vacated and remanded with instructions by unpublished per curiam
opinion.
Francis Joseph Prior, Jr., SICILIANO, ELLIS, DYER & BOCCAROSSE,
Fairfax, Virginia, for Appellant.    Jim H. Fields, Jr., COZEN
O’CONNOR, Philadelphia, Pennsylvania, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                               2
PER CURIAM:

     On the morning of January 12, 2004, Wittman Mechanical

Contractors, Inc., the mechanical subcontractor on a new house

under   construction    in     Loudoun       County,    Virginia,     activated   a

propane gas line feeding the gas system in the house and turned on

the furnace. Approximately one hour later, an explosion occurred,

destroying the house.           Experts concluded that the explosion

resulted from a gas leak at the connection between the main gas

pipeline in the basement and the spur gas pipeline running up to

the kitchen island cooktop on the first floor.

     Under the “scope of work” provision in the contract between

Wittman Mechanical and the general contractor, Wittman Mechanical

was responsible for installing and starting up the furnace, but it

was not responsible for installing the gas pipeline system or

testing   it   for     leaks     before        the     system   was    activated.

Nonetheless, Wittman Mechanical activated the gas pipeline system

at the request of the general contractor and, before activating

the system, did not test for leaks in the system.

     The general contractor’s insurance company, St. Paul Fire &

Marine Insurance Company (“St. Paul Insurance”) paid the loss and

then commenced this subrogation action against Wittman Mechanical,

alleging breach of warranty and negligence in activating the gas

system and starting the furnace without testing for leaks.




                                         3
      Following a three-day trial, a jury found in favor of Wittman

Mechanical on both claims.       The district court, however, granted

St.       Paul   Insurance’s    post-trial        motion     for     judgment

notwithstanding the verdict, concluding that Wittman Mechanical

breached its express warranties by failing to perform a pressure

test for leaks.     The court thus entered judgment in favor of St.

Paul Insurance for $445,685, plus interest.

      We conclude on appeal that based on the “scope of work”

clause in the subcontract between Wittman Mechanical and the

general contractor, Wittman Mechanical was responsible only for a

breach of warranty given in connection with installation of the

furnace, which required Wittman Mechanical to perform a soap-and-

water test* at the connection between the furnace and the gas line

system, but not a pressure test on the entire gas pipeline system,

which was required only of the contractor doing the gas pipeline

work.       Accordingly,   we   conclude   that    the     jury    could   have

concluded, based on the evidence at trial, that any failure by

Wittman Mechanical to perform a soap-and-water test was not the

cause of the explosion.         We therefore vacate the judgment and

remand to the district court with instructions to reinstate the

verdict and enter judgment for Wittman Mechanical.



      *
      A soap-and-water leak test is the familiar test used, for
example, in checking bicycle tires for leaks. Soap and water is
put on a suspected leak, and if bubbles occur, they indicate the
site of a leak.

                                    4
                                          I

      Wittman    Mechanical       was     hired    by   Virginia      Residential

Construction,       Inc.,    as   a   subcontractor        to   provide   heating,

ventilation,     and   air    conditioning        services      to   houses   under

construction in Loudoun County, including the house in question.

Virginia Residential was a residential real estate developer in

the Washington, D.C. metropolitan area and was the owner of and

contractor for the house in question.                   The contract between

Wittman Mechanical and Virginia Residential included a “scope of

work” provision that required Wittman Mechanical to perform only

the HVAC work, including the installation and starting of the

furnace.    But the contract did not include within the scope of the

work any work related to installation and testing of the gas

pipeline system. The contract provided that all gas pipeline work

was to be performed by Peed Piping, another subcontractor retained

by Virginia Residential.

      After Peed Piping had initially installed the gas pipes in

the house, Loudoun County inspectors performed an inspection of

the pipes.      This inspection required that all gas pipes in the

house first be tied to an appliance, be capped off, or have a shut

off valve.      The county inspectors performed a pressure test to

detect any leaks in the system by injecting a specified amount of

air pressure into the pipes.            Because the pipes held the pressure

for   24   hours,    the    house’s     system    passed    inspection    and   was


                                          5
approved in October 2003.     Approximately three months passed,

during which a spur gas line running from the main gas pipeline in

the house’s basement to the island cooktop in the kitchen became

disconnected.   It was at this connection between the main gas

pipeline and the spur line from which gas leaked, causing the

explosion on January 12, 2004.

     On the morning of January 12, 2004, Robert Casteel and Lloyd

Henry Dignazio, employees of Wittman Mechanical, arrived at the

house to install brackets for air conditioning units.     At some

point during the morning, Virginia Residential’s superintendent at

the site, Russell Rolle, asked Casteel to start the furnace for

warmth.   By that time, Wittman Mechanical had already installed

the furnace but had not started it up. After receiving permission

from his supervisors at Wittman Mechanical, Casteel opened the

line at the furnace to bleed out air that could prevent the

furnace from starting.    On doing this, he felt no pressure and

smelled no gas, indicating to him that the line from the propane

tank had not yet been activated.     When Casteel advised Rolle of

this fact, Rolle asked Casteel to activate the gas line leading

from the propane tank to the house.    This task, however, was one

that did not fall within the scope of work for Wittman Mechanical.

Nonetheless, feeling pressure from Rolle, Casteel called Wittman

Mechanical’s main office and asked permission to activate the

line.   Wittman Mechanical’s operations manager authorized Casteel


                                 6
to activate the line once he was informed that Rolle had assured

Casteel that the gas pipeline system was ready to receive propane

gas.    Wittman Mechanical’s operations manager testified at trial

that he had assumed that, based on Rolle’s request to activate the

system and his assurance that the system was in good condition and

ready to receive propane gas, Rolle was accepting responsibility

for any adverse consequences that might arise from the activation

of the system.

       After conducting a visual inspection of the gas appliances in

the house to confirm that the gas line valves were set in the off

position, Casteel activated the propane gas line and started the

furnace in the basement. In starting the furnace, Casteel did not

perform    any    type   of   leak   test,    nor    did   he   consult     the

manufacturer’s instruction manual that came with the furnace

itself, testifying that he had never done so.              He also testified

that he was not aware of any codes or industry standards that he

was required to follow before or after turning on the gas and

starting the furnace.

       The explosion occurred approximately one hour after Casteel

activated the gas line and started the furnace.

       Following the explosion, St. Paul Insurance, who was the

insurer   of     Virginia   Residential,     paid   Virginia    Residential’s

insurance claim and commenced this subrogation action against

Wittman Mechanical for breach of warranty and negligence.                 After


                                      7
the jury returned a verdict in favor of Wittman Mechanical on both

claims, St. Paul Insurance moved for a judgment under Federal Rule

of Civil Procedure 50, and the district court granted the motion,

awarding St. Paul Insurance $445,685, with interest at 9 percent

from January 12, 2004.

     Wittman Mechanical filed this appeal.


                                II

     A trial court may direct judgment as a matter of law only

when there is no legally sufficient evidentiary basis for a

reasonable jury to find in favor of the non-moving party.   Fed. R.

Civ. P. 50(a)(1); Babcock v. Bell South Advertising & Publishing

Corp., 348 F.3d 73, 76 (4th Cir. 2003).   In considering to grant

a motion as a matter of law, notwithstanding the verdict, the

court must view the evidence in the light most favorable to the

non-moving party and draw all reasonable inferences in that

party’s favor without weighing the evidence or considering the

witnesses’ credibility.   Baynard v. Malone, 268 F.3d 228, 234-35

(4th Cir. 2001).   Stated otherwise, judgment as a matter of law

can be granted only if the evidence “supports only one reasonable

conclusion as to the verdict” under the governing law.      Bank of

Montreal v. Signet Bank, 193 F.3d 818, 831 (4th Cir. 1999).

     Our review of a district court’s grant of a Rule 50 motion

applies the same standards de novo.   Brown v. CSX Transportation,

Inc., 18 F.3d 245, 248 (4th Cir. 1994).

                                8
      In this case, the district court found as a matter of law

that Wittman Mechanical breached its express warranty when it

failed to conduct a leak test before or after starting the

furnace.     The court properly recognized that Wittman Mechanical

could not have breached any warranty with regard to activating the

gas pipeline system, because “the contract between [Virginia

Residential] and Wittman Mechanical does not unambiguously cover

propane gas piping and installation.”

      To find that Wittman Mechanical breached its warranties in

connection with starting the furnace, the district court relied on

the contract between Virginia Residential and Wittman Mechanical,

in   which   Wittman    Mechanical     warranted   its   qualifications      to

perform the “Work,” as defined in the contract; warranted it was

familiar with and had sufficient knowledge of the “Work”; and

warranted that its “Work” would be performed free of defects and

in   accordance      with   sound   engineering    standards,    as   well   as

standards of the industry.

      The    court    also    relied   on   the    furnace   manufacturer’s

installation manual, which directed that the installer “pressure

test” the “piping system”; inspect the “entire [piping] system”

before turning on the gas; and test “the piping system” for

leakage after gas is “turned on into” the system.               In connection

with the particular task of installing the furnace, the furnace




                                       9
manual    provided         a    warning     pertaining          to    “furnace          start-up

procedures” as follows:

       Never purge a gas line into a combustion chamber. Never
       use matches, candles, flame or other sources of ignition
       for the purpose of checking leakage. Use a soap-and-
       water solution to check for leakage. Failure to follow
       this warning can cause fire, explosion, personal injury,
       or death.

(Emphasis added).

       The court concluded that “Wittman Mechanical breached the

express    warranties           contained       in    the    contract          [with    Virginia

Residential] by failing to follow the practices and standards

referenced      in    the       contract    and       specified           in   the      [furnace]

installation manual and the National Fuel Gas Code.” It concluded

that “[h]ad Wittman Mechanical’s workmen followed these practices

--    specifically,        conducting       a    leak       test     --    they      would   have

discovered the leak and thus have avoided the explosion.”

       It is undisputed in this case that Wittman Mechanical did not

conduct any leak test.                  Nonetheless, a question still remains

whether    its       failure       to    conduct       the     appropriate           leak    test

conclusively caused the explosion.                     The jury obviously found that

Wittman Mechanical’s failure to perform a leak test did not cause

the    loss,    and    it       returned    a        verdict    in        favor    of     Wittman

Mechanical.         We find that the jury’s verdict was reasonable and

was supported by substantial evidence.

       The duties contained in the furnace installation manual, as

outlined       by    the       district    court,       implied       that        the    furnace

                                                10
installation subcontractor was also the subcontractor installing

the “gas pipe system” and therefore was responsible for testing

and turning on the gas pipeline system.       But, of course, in this

case,   as   the   district   court    appropriately   recognized,   the

responsibilities were divided between Wittman Mechanical and Peed

Piping.      The “scope of work” assigned the responsibility of

installing, testing, and activating the gas pipeline system to

Peed Piping, and it assigned the responsibility of installing,

testing, and starting up the furnace to Wittman Mechanical.          When

reading the furnace installation manual in the light of these

divided responsibilities, it becomes apparent that the furnace

manual required the furnace installer to do only a soap-and-water

leak test at the furnace’s connection with the gas pipe system,

specifically warning the furnace installer not to conduct a

pressure test.     The pressure test was reserved for testing the

entire system.

     Reading from the furnace manual, which includes instructions

relating to installation of the gas pipeline system as well as

installation of the furnace, it states first with respect to the

pipeline system:

     Piping should be pressure and leak tested in accordance
     with [the National Fuel Gas Code] . . . local, and
     national plumbing and gas codes before the furnace has
     been connected.




                                      11
(Emphasis added).   But it states that after the furnace has been

connected, the installer should perform a soap-and-water test

where the furnace connects with the pipeline system:

     Never purge a gas line into a combustion chamber. Never
     test for gas leaks with an open flame.           Use a
     commercially available soap solution made specifically
     for the detection of leaks to check all connections. A
     failure to follow this warning could result in fire,
     explosion, personal injury, or death.

The manual goes on to repeat this statement as a warning, stating

again to “[u]se a soap-and-water solution to check for leakage.”

Thus, while some portions of the furnace manual address the

installation of a gas pipeline system, a task assigned to Peed

Piping, other portions address installation and start-up of the

furnace, which in this case was assigned to Wittman Mechanical.

     While it is undisputed that Wittman Mechanical did not

perform the soap-and-water test, it is also undisputed that had it

performed this test, the test would not have detected the leak.

The leak was at a location away from the furnace’s connection to

the system.   It was located where the main gas line connects with

a spur gas line rising to the kitchen island.      Thus, the jury

could well have concluded that Wittman Mechanical’s failure to

conduct the only test the manual required it to perform -- the

soap-and-water test at the furnace connection -- did not cause the

explosion.    It was, thus, error for the district court to have

disregarded the jury verdict when evidence existed to support the

verdict.

                                12
       For similar reasons, the district court would not be able to

grant judgment notwithstanding the verdict on the negligence

claim.    Even if it found that Wittman Mechanical was negligent in

activating the gas system, as requested by Virginia Residential,

the court would still have to recognize the possibility that the

jury     could   have   found   Virginia   Residential   contributorily

negligent in assuring Casteel that the system was ready to be

activated, thus denying the possibility of its recovering from

Wittman Mechanical.       See Jenkins v. Pyles, 611 S.E.2d 404, 407

(Va. 2005) (citing Sawyer v. Comerci, 563 S.E.2d 748, 752 (Va.

2002)).

       For the foregoing reasons, we vacate the judgment entered by

the district court and remand this case to the district court with

instructions to reinstate the verdict and to enter judgment in

accordance with the reinstated verdict.



                                                     IT IS SO ORDERED.




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