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Bozievich v. Moreau

Superior Court of Delaware

April 16, 2019

Stuart Bozievich
v.
Marc Moreau, d/b/a Wrenches Auto Repair, Marc Moreau, Individually, Sherri Moreau, Individually, and Jonathan J. Plump

          William D. Fletcher, Jr., Esquire Dianna E. Louder, Esquire Schmittinger & Rodriguez.

          Colin M. Shalk, Esquire Casarino Christman Shalk Ransom & Doss.

         Dear Counsel:

         This is my decision on Defendant Jonathan J. Plump's Motion for Summary Judgment on all claims against him made by Plaintiff Stuart Bozievich for damages to Bozievich's classic 1974 Corvette automobile. The damages were sustained when a fire started in an electrical outlet and heavily damaged Wrenches Auto Repair where Bozievich's Corvette was undergoing repairs. Defendants Marc and Sherri Moreau are the owners and operators of Wrenches Auto Repair. Plump is the owner of the property where the business was located. The Moreaus leased the space for Wrenches from Plump.

         There are two claims subject to Plump's motion. The first claim is for a breach of a bailment agreement for the Corvette between Bozievich and the Moreaus. Plump argues that he was not a party to the bailment agreement and that he cannot be held liable for its breach. Bozievich does not appear to dispute this argument and has failed to provide any support for this claim as it pertains to Plump.

         The second claim against Plump is based on his alleged negligence in failing to properly inspect the electrical system in the auto repair shop. Bozievich argues that Plump, as the landowner, owed him a duty to inspect the electrical system to ensure that it was safe, and by failing to do so is responsible for the damages caused by the fire when the electrical system malfunctioned. Plump counters by pointing out that Bozievich has failed to present facts necessary to establish the existence of a duty and what that duty would have entailed. Further, Plump posits that there is a lack of evidence as to the specific cause of the fire sufficient to support a finding of proximate cause.

         I have decided that Plump is entitled to summary judgment in his favor for all claims against him. I find that as a nonparty he is not liable for the breach of the alleged bailment agreement between Bozievich and the Moreaus. I have also concluded that while the existence and scope of any duty to inspect the electrical system is relatively murky, it is clear that there is no way, even viewing the evidence in a light most favorable to Bozievich, to determine the actual cause of the fire at this point in time. This renders a determination of the proximate cause of Bozievich's damages impossible and makes summary judgment on the negligence claim appropriate.

         STATEMENT OF FACTS

         Defendants Marc and Sherri Moreau (the "Moreaus") operated Wrenches Auto Repair ("Wrenches"), an automobile repair shop located at 1958 Bloomfield Drive, Milford, Delaware (the "Property"). Defendant Jonathan Plump ("Plump") purchased the Property in 2011, consisting of an approximately 4, 000 square foot pole building and surrounding acreage. The Moreaus had been operating Wrenches on the Property for some time prior to Plump's purchase, and Plump initially agreed to honor the terms of their existing lease agreement with the previous owner. On January 1, 2014, Plump and the Moreaus entered into a new lease agreement (the "Lease Agreement") for a three-year term.[1] The Lease Agreement accounted for 3, 000 square feet of the building which housed Wrenches. Plump retained the remaining portion of the building to use for storage.

         Plaintiff Stuart Bozievich ("Bozievich") is a vintage car enthusiast who entered into an agreement with the Moreaus to repair a classic 1974 Corvette automobile (the "Corvette"). Unfortunately, on December 6, 2015, a fire occurred at Wrenches while the Corvette was located within the building. As a result of the damages sustained in the fire, the Corvette was deemed a total loss. An inspection conducted by the Delaware State Fire Marshal determined that the fire most likely started when a failure occurred within an electrical socket located on the rear interior wall of Wrenches.[2]

         Bozievich brought suit against the Moreaus and Plump for breach of a bailment agreement and negligence in the amount of $25, 500.00 for damages sustained by the Corvette. Bozievich has already obtained default judgments for his claims against the Moreaus. All that remains for my consideration are his claims against Plump. Plump has filed a Motion in Limine for the exclusion of testimony regarding the value of the Corvette. Plump has also moved for summary judgment on all claims against him in this matter.

         STANDARD OF REVIEW

         This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact.[3] Once the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact.[4] The Court views the evidence in a light most favorable to the nonmoving party.[5] Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial.[6] If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of the case, then summary judgment must ...


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