Harford Mutual Insurance v. Apria Healthcare, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-2542
THE HARFORD MUTUAL INSURANCE COMPANY, subrogee
of Carriage Hill Apartments,
Plaintiff - Appellant,
versus
APRIA HEALTHCARE, INCORPORATED,
Defendant - Appellee,
and
MALLINCKRODT, INCORPORATED,
Defendant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-03-
180-RWT)
Argued: September 20, 2005 Decided: December 15, 2005
Before LUTTIG and GREGORY, Circuit Judges, and Robert J. CONRAD,
Jr., United States District Judge for the Western District of North
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Jeffrey Allan Wothers, NILES, BARTON & WILMER, L.L.P.,
Baltimore, Maryland, for Appellant. Gerard Joseph Gaeng, Kevin J.
Pascale, ROSENBERG, MARTIN, FUNK & GREENBERG, L.L.P., Baltimore,
Maryland, for Appellee. ON BRIEF: Jeanie S. Ismay, NILES, BARTON
& WILMER, L.L.P., Baltimore, Maryland, for Appellant. T. Christine
Pham, ROSENBERG, MARTIN, FUNK & GREENBERG, L.L.P., Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
The Harford Mutual Insurance Company ("Harford"), subrogee of
Carriage Hill Apartments, appeals the district court’s grant of
summary judgment that Apria Healthcare, Incorporated ("Apria") was
not negligent in distributing, delivering, installing and storing
oxygen cylinders, nor had it failed to provide adequate warning or
instruction for its products. Harford also appeals certain
evidentiary decisions of the district court. For the reasons
stated below, we affirm the district court’s grant of summary
judgment on the issues of duty of care and negligence. Because we
find that the district court properly granted summary judgment on
these issues, we need not reach the issue of its evidentiary
decisions.
I.
Harford provides insurance coverage to Carriage Hill
Apartments ("Carriage Hill"), an apartment complex in Maryland. In
December 1999, one of Carriage Hill’s apartment buildings was
severely damaged by a fire accidentally started when the five-year
old grandson of tenant Daisy Blakes played with matches on Blakes’s
bed. Harford paid approximately $1.5 million to Carriage Hill to
cover this damage.
Apria operates a nation-wide business that delivers such
products as cylinders of medical oxygen to its customers’ homes.
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At the time of the events central to this case, Apria had delivered
medical oxygen cylinders to Daisy Blakes for several months. When
they were delivered, Apria placed its cylinders on a bookshelf in
Blakes’s seventeen-by-eleven foot bedroom. By December 1999,
Blakes’s garden apartment contained approximately thirty oxygen
cylinders. Twenty-seven cylinders were recovered after the fire.
Harford contends Apria’s oxygen cylinders exacerbated the
fire. It filed suit against Apria, alleging negligence in failing
to properly deliver, install and store medical oxygen cylinders in
Blakes’s apartment. Specifically, Harford asserted that the
relevant paragraphs of NFPA 99, which require gas equipment used in
home health care to be stored at least twenty feet from combustible
materials or in a "fire rated cabinet", were incorporated into
Maryland law, and created a statutory duty of care. In addition,
Harford alleged that Apria failed to warn the tenant of the fire
and explosion hazards associated with such cylinders. Apria moved
for summary judgment, arguing that the standard sought to be
applied for oxygen storage was not incorporated into Maryland law,
and that no evidence had been offered regarding the alleged
defectiveness of the warning label.
The district court granted Apria’s motion for summary judgment
on all claims. Harford appeals this judgment.
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II.
This court reviews de novo a district court’s grant of summary
judgment. See Monumental Paving & Excavating v. Pennsylvania Mfrs.
Assoc. Ins. Co., 176 F.3d 794, 797 (4th Cir. 1999).
A. Duty of Care
Appellate briefing and oral argument in this case have
narrowed this issue to whether the entirety of the National Fire
Protection Association’s (“NFPA”) Model Code 99 (“NFPA 99") has
been incorporated into NFPA Model 101, and whether sufficient
evidence has been offered that Apria’s alleged violation of County
Code 11-265 caused the damage.
1. NFPA 101 and NFPA 99
The NFPA is a private association that publishes model codes.
Model Code NFPA 99 is entitled “Standard for Health Care
Facilities.”
Chapter 18 of NFPA 99 is entitled “Electrical and Gas
Equipment for Home Care.” It “addresses the requirements for the
safe use of electrical and gas equipment used for medical treatment
outside health care facilities.” Paragraph 18-3.8 provides that
“[g]as equipment used in the home for health care shall conform to
such requirements of Chapter 8 as applicable.” Chapter 8 of NFPA 99
addresses the storage requirements for the types of oxygen
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cylinders that were in Blakes’s apartment. Paragraph 8-3.1.11.2
provides that:
Oxidizing gases such as oxygen . . . shall be
separated from combustibles or incompatible materials by
either:
1. A minimum distance of 20 ft (6.1 m); or
2. A minimum distance of 5 ft (1.5 m) if the
entire storage location is protected by an automatic
sprinkler system designed in accordance with NFPA 13 . .
. ; or
3. An enclosed cabinet of noncombustible
construction having a minimum fire protection rating of
one-half hour for cylinder storage. An approved
flammable liquid storage cabinet shall be permitted to be
used for cylinder storage.
Paragraph 8-2.1.2.2 provides examples of combustible materials
that may be found near patients, including “hair oils, oil-based
lubricants, skin lotions. . .[and] bed linen.”
Blakes’s bedroom was eleven by seventeen feet. And the oxygen
cylinders were stored on a bookshelf in her bedroom. There has
been no suggestion that the apartment had an automatic sprinkler
system. Therefore, under NFPA 99, the oxygen cylinders arguably
should have been placed more than twenty feet away from any
combustible materials. At issue in this case is whether the
relevant paragraphs of NFPA 99 have been incorporated into Maryland
law.
“NFPA 101” is the 1997 edition of National Fire Prevention
Associations Life Safety Code and was incorporated by reference in
Maryland’s State Fire Prevention Code. Md. Regs. Code. Tit. 29,
§ 06.01.06(B)(2)(a) (1999).
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Chapter 33 of NFPA 101 states that the listed “documents or
portions thereof are referenced within this Code as mandatory
requirements and shall be considered part of the requirements of
this Code. . . . The numbers in parentheses represent the paragraph
numbers from chapters of this Code that reference the given
publication in a mandatory way.” (Emphasis added.) The reference
to NFPA 99 appears as follows:
NFPA 99, Standard for Health Care Facilities, 1996
edition.
[6-4.4 Exception, 7-2.4, 12-2.9.2, 12-2.10.2, 12-3.2.1,
12-3.2.2, 12-3.2.3, 12-3.2.4, 12-5.1.2, 12-5.1.3, 12-
6.2.9.2, 12-6.3.2.1,12-6.3.2.2, 13-3.2.2, 13-3.2.3, 13-
3.2.4, 13-6.2.9.2, 13-6.3.2.1,13-6.3.2.2]
The NFPA 101 paragraphs following the NPFA 99 reference each
require that NFPA 99 be applied under certain circumstances. The
references from Chapters 6 and 7 apply to laboratories. Eleven of
the nineteen references to NFPA 99 are in Chapter 12, which applies
only to “New Health Care Occupancies.” Appellee’s Adden.15. Six
of the nineteen references to NFPA 99 are in Chapter 13, which
applies only to “Existing Health Care Occupancies.” Paragraph 8-
3.1.11.2 does not appear as a mandatory reference. And none of the
other references relate to home use of oxygen use.
Harford maintains that NFPA 101 incorporated the entirety of
NFPA 99 by reference, and, therefore, that NFPA 99 has the
authority of law in the state of Maryland. Harford’s primary
argument involves a parentheses/brackets distinction. The NFPA 101
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paragraphs that follow NFPA 99 are enclosed in brackets, not
parentheses. The paragraph numbers that follow the other
provisions in that section are sometimes in brackets and sometimes
in parentheses. Harford contends that “the drafters intended to
incorporate all of NFPA 99 into the Life Safety Code since there
are no sections appearing in parentheses.” (Emphasis added.) We
find this argument unpersuasive.
First, Chapter 33 provides that “the listed documents are
mandatory only to the extent called for in [101 NFPA].” Thus, it
is apparent that Chapter 33 did not effect a wholesale
incorporation by reference of Chapter 99.
Second, Harford offers no viable alternative explanation for
the numbers in brackets if they are not a listing of the specific
incorporations by reference. Moreover, an examination of listed
paragraphs reveals that they are sections of NFPA 101 that
expressly incorporate certain provisions of NFPA 99 and apply them
only to specific situations.1
Thus NFPA 99's requirement that oxygen cylinders be stored
more than twenty feet from combustible materials is not applicable.
1
The most likely explanation for the alternating use of
brackets and parentheses is that, except for NFPA 99, the drafters
used brackets when the listed paragraph numbers included a lower
case letter enclosed in parentheses. We therefore find that the
Life Safety Code’s parenthetical references include bracketed
material.
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2. Prince George's County Code § 11-265
Harford also argues there was sufficient evidence before the
district court that Apria breached the duty under Prince George's
County Code §11-265 regarding storage of compressed gases.2 We
find that this argument also is unpersuasive. Even if it is
arguable whether Apria “stored” the cylinders, the district court
was correct that no evidence has been identified that the effects
of the fire were exacerbated by any alleged failure to secure the
tanks. The analysis of Harford’s expert, Mr. Leshner, rested upon
his primary determination that the cylinders were violently
propelled away from the explosion after one of the cylinders
failed. There is no indication from Leshner, or anyone else, that
any of the cylinders failed because they fell or were knocked over.
Thus, we find that Harford has failed to show that any
violation of § 11-265 caused the damage alleged to have occurred.
B. Failure to warn
Harford asserts that the warnings on the cylinder labels are
defective because they “do not warn of explosions when the
cylinders are exposed to fire if not properly stored.” We likewise
find this argument unpersuasive. These labels state, “WARNING HIGH
2
Prince George's County Code, Title 17, Subtitle 11, Division
4, § 11- 265(b)provides, “[a]ll compressed gas cylinders in service
or in storage shall be secured to prevent falling or being knocked
over.”
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PRESSURE OXIDIZING GAS VIGOROUSLY ACCELERATES COMBUSTION.” The
accompanying manual states, “Keep cylinders and oxygen tubing at
least five feet from any source of heat.”
“Maryland does not require an encyclopedic warning.” Hood v.
Ryobi America Corp., 181 F.3d 608, 610 (4th Cir. 1999). Instead,
“a warning need only be one that is reasonable under the
circumstances.” Id. (quoting Levin v. Walter Kidde & Co., 248 A.2d
151, 153 (Md. 1968)). In this case, the user was reasonably
cautioned that combustion would be “vigorously accelerated” and
that the cylinders and tubing should be kept at least five feet
away from any heat source.
Harford contends on appeal even if adherence to NFPA 99 is not
mandatory in this situation, the MSDS provides some support for the
application of NFPA 99 standards. Incorporation of these
standards, however, still would not seem to warn of any possible
explosion. Because a warning need not be “encyclopedic,” Hood,181
F.3d at 610, and the warnings given in this case were “reasonable”,
we find that Harford has presented insufficient evidence to the
contrary to survive summary judgment.
III.
For the reasons stated herein, we affirm the district court’s
grant of summary judgment.
AFFIRMED
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