Auto Body Inferno Case Will Head to PA Jury

     (CN) – A jury must determine blame for the inferno at an auto-body shop where a truck knocked down a power pole, a federal judge ruled.
     Earnell Harris had driven a Dedicated Logistics tractor-trailer through an alley to the King Chrysler Jeep Dodge dealership in New Castle, Pa., to deliver goods with his trainee, Tom Lirette, in the wee hours of May 19, 2011.
     As Harris drove back through the alley, the truck struck the overhead wires, so a Penn Power utility pole broke and its transformers detached, fell onto the body shop, and caught fire.
     King’s insurance carrier, Universal Underwriters Insurance Co., paid for the property damage and then brought a subrogation action against Dedicated and Penn Power.
     Dedicated settled to pay $400,000 to Universal, which is now not a party to the litigation.
     The logistics company filed a cross-claim for contribution against Penn Power, which, in turn, asserted cross-claims for indemnity as well as a counterclaim for negligence.
     Dedicated maintains that its truck first made contact with the pole when the top right corner of the trailer snagged an overhead service wire that Penn Power had negligently maintained so that it hung below the required clearance of 16 feet.
     Penn Power, on the other hand, argues that the first contact occurred when the trailer’s first-axle, right-side tire struck the cable anchoring the utility pole, causing the service wires to hang below the required clearance.
     Dedicated moved to dismiss and/or for a negative inference based on Penn Power’s alleged disposal of the pole before the logistics company could inspect it.
     Penn Power, in turn, moved for sanctions based on Dedicated’s decision to place the tractor-trailer back into service without documenting its post-accident condition.
     On Dec. 19, U.S. District Judge Nora Barry Fischer found no inference that Penn Power acted to suppress relevant evidence in bad faith.
     “In the days immediately following the fire, the focus was not on the pre-accident condition of the utility pole, but on the possibility that the tractor-trailer had struck a guy wire, causing the utility pole to shift and the overhead wires to catch on Dedicated’s delivery truck,” Fischer wrote. “In fact, it was not until May 27 that [James] Haberkorn[, Dedicated’s safety director,] first questioned the integrity of the utility pole based on a picture he had seen, and Dedicated did not formally request preservation of the pole until June 3, 2011, some two weeks after the accident.”
     Dedicated’s claim that the pole was rotted will be addressed at trial, the judge ruled.
     “In addition, the court finds that the actions of Penn Power’s agents do not suggest a fraudulent intent to suppress relevant evidence,” Fischer wrote. “There is no claim here that Penn Power’s agents ever took actions to limit third-party access to the pole, other than for reasons of safety while crew members were working on the pole and remediating the damage on site.”
     The court rejected meanwhile a claim by Penn that Dedicated should have quarantined the truck.
     “At this juncture, it appears that Penn Power has not found evidence on the vehicle to confirm its theory that the vehicle’s tire struck the damaged guy wire,” Fischer wrote. “Penn Power contends that such evidence may have existed at one time and been lost to natural wear and tear on the vehicle, routine cleaning and maintenance, or weathering. This theory is somewhat speculative but, regardless, Penn Power will have the opportunity to present this argument at time of trial so as to account for the lack of physical evidence on the truck.”
     Dedicated failed to persuade the judge to exclude testimony by Penn Power’s expert.

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