                                        SUPERIOR COURT
                                                OF THE
                                      STATE OF DELAWARE

E. SCOTT BRADLEY                                                                    1 The Circle, Suite 2
               JUDGE                                                           GEORGETOWN, DE 19947


                                           July 28, 2017

Kevin J. Connors, Esquire                                David G. Culley, Esquire
Marshall, Dennehey, Warner,                              Tybout, Redfearn & Pell
Coleman & Goggin                                         750 Shipyard Drive, Suite 400
1007 N. Orange Street, Suite 600                         P.O. Box 2092
P.O. Box 8888                                            Wilmington, DE 19899
Wilmington, DE 19899

Geoffrey S. Lockyer, Esquire
Weber, Gallagher & Simpson
2000 Market Street, Suite 1300
Philadelphia, PA 19103

       RE: State Farm Fire and Casualty Company v.
           Pettinaro Construction Company, et al.
           C.A. No: S15C-04-028 ESB

Dear Counsel:

       I have denied Defendant Bear Industries, Inc.’s Motion for Summary Judgment

because there are genuine issues of material fact over Bear’s responsibility for the

water damage to Collins Way at Bethany Beach, a condominium located in Ocean

View, Delaware.1 Plaintiff State Farm Fire and Casualty, as subrogee of Collins Way,

is seeking to recover the $50,127.80 that it paid for the water damage to Collins Way.


       1
           Summary Judgment is only appropriate when there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter of law. Burkhart v. Davies, 602
A.2d 56, 59 (Del. 1991).
Defendant Pettinaro Construction Company, Inc. was the general contractor for

Collins Way. Bear was a subcontractor for Pettinaro. Bear installed the fire sprinkler

system in Collins Way. State Farm alleges that cold air penetrated a gap in the

exterior wall that was not properly sealed, causing water in the sprinkler pipe to

freeze and the pipe to burst. State Farm’s expert, Kenneth R. McLauchlan, has

offered an opinion providing that “the incident was the result of inadequate sealing

of the gap between the sprinkler pipe and the exterior wall by the installer of the dry

sprinkler head.” Bear’s expert, J. David Majewski, has offered an opinion providing

that Bear, under its subcontract with Pettinaro and construction trade and industry

custom, had no obligation to seal the gap in the exterior wall. According to Mr.

Majewski it was another subcontractor, Delmarva Insulation, that had the obligation

to seal the gap in the exterior wall. I view these as competing opinions that cannot

be resolved on a Motion for Summary Judgment. I also note the following, which

when viewed in the light most favorable to State Farm, further make it inappropriate

to grant Bear’s Motion for Summary Judgment.

      1. Mr. McLauchlan further opined that:

      Because the water-filled piping is so close to potentially freezing
      conditions, it is critical that the exterior wall penetration be sealed to
      prevent infiltration of outside air into the cavity wall where the water-
      filled pipe is located. Review of the manufacturer’s installation
      literature for the F3 dry sprinkler head indicates that sealing the

                                           2
       penetration is required.

       The fact that it is in the manufacturer’s installation instructions for the dry

sprinkler head that indicate that sealing the penetration is important suggests to me

that the installer, Bear, should have sealed the penetration.      It was Bear, not

Delmarva, that would have been familiar with the manufacturer’s installation

instructions.

       2. Bear’s subcontract required it to fire caulk all penetrations through walls,

floors and ceilings. It does not, as does Mr. Majewski’s opinion, make a distinction

between the interior and exterior walls.

       3. Delmarva’s contract does not mention sealing penetrations in the exterior

walls with caulk.

       Given the conflicting expert opinions and how other facts must be viewed in

the light most favorable to State Farm, I will deny Bear’s Motion for Summary

Judgment.

       IT IS SO ORDERED.

                                           Very truly yours,

                                           /s/ E. Scott Bradley

                                           E. Scott Bradley
ESB/sal
cc: Prothonotary

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