Buckstop Acquisition Company, LLC v. Cristino Castaneda, Individually and DBA Thermo Cooling Insulation

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00484-CV
BUCKSTOP ACQUISITION COMPANY, LLC,
Appellant
v.
Cristino CASTANEDA, individually and d/b/a Thermo Cooling Insulation,
Appellee
From the 38th Judicial District Court, Real County, Texas
Trial Court No. 2016-3309-DC
Honorable Spencer W. Brown, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Delivered and Filed: June 13, 2018
AFFIRMED
At issue in this appeal is whether expert testimony was necessary to establish the standard
of care applicable to the installation of spray polyurethane foam (“SPF”) during renovation of a
commercial building. Because we hold that expert testimony regarding the standard of care was
needed, we affirm the trial court’s summary judgment in favor of Appellee Cristino Castaneda,
individually and d/b/a Thermo Cooling Insulation (“Castaneda”).
04-17-00484-CV
BACKGROUND
In 2014, Appellant Buckstop Acquisition Company (“Buckstop”) acquired a two-acre tract
of land in Leakey, Texas, and decided to renovate the existing convenience store and restaurant
located on the property. On February 9, 2015, during the renovation process, the convenience store
and restaurant were destroyed by fire. The fire began when insulation in the building was ignited
by hot slag during the welding process. Although the welder attempted to extinguish the fire, it
spread quickly throughout the building. The building was a complete loss.
Buckstop was insured by Scottsdale Insurance Company (“Scottsdale”) and was paid a sum
in settlement of its insurance claim. Scottsdale then brought a subrogation claim against Castaneda.
Castaneda, a subcontractor, was hired by the general contractor of the renovation project to install
SPF. Castaneda completed his work in one day and was paid $10,000 for the job. Eight days after
Castaneda installed the foam, the fire started as a result of the welder working close to the SPF.
Scottsdale alleged Castaneda was negligent in failing to use reasonable care in the insulation work
because he did not use a fire retardant in the SPF and did not apply a thermal barrier to the exposed
surface of the foam. Buckstop then intervened in the lawsuit, seeking recovery of its uninsured
losses from Castaneda. Like Scottsdale, Buckstop alleged Castaneda was negligent by failing to
use a fire retardant in the insulation and by failing to apply a thermal barrier to the exposed surface
of the foam.
About nine months after Buckstop filed its petition in intervention, Castaneda filed no-
evidence motions for summary judgment against Buckstop and Scottsdale. In both motions,
Castaneda argued neither Buckstop nor Scottsdale had evidence proving the elements of their
negligence causes of action. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477
(Tex. 1995) (“The elements of a negligence cause of action are a duty, a breach of that duty, and
damages proximately caused by the breach of duty.”). Specifically, Castaneda argued neither
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Buckstop nor Scottsdale had provided expert testimony regarding the applicable standard of care
and any breach of the standard of care. Scottsdale filed a response to the no-evidence motion for
summary judgment and attached evidence in support, including an affidavit and expert report by
Mark Sutherland, an electrical engineer and fire investigator; and excerpts of testimony from
Castaneda’s deposition. Buckstop then filed its own response and adopted by reference
Scottsdale’s response, including the evidence attached. Buckstop then attached its own evidence
to its response. The trial court granted both no-evidence motions for summary judgment filed by
Castaneda. Buckstop filed a notice of appeal. Scottsdale did not appeal.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
A no-evidence motion for summary judgment “is essentially a motion for a pretrial directed
verdict.” Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); see TEX. R. CIV. P.
166(a)(i). “Once such a motion is filed, the burden shifts to the nonmoving party to present
evidence raising an issue of material fact as to the elements specified in the motion.” Mack, 206
S.W.3d at 582. “We review the evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was rendered, crediting evidence
favorable to that party if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not.” Id.
DISCUSSION
On appeal, Buckstop argues the trial court erred in granting Castaneda’s no-evidence
summary judgment against it because the evidence attached to its response and the evidence it
adopted by reference from Scottdale’s response provided sufficient evidence to support each
element of its negligence cause of action. In his appellee’s brief, Castaneda narrows the issue for
appeal: “[F]or purposes of this appeal only, Castaneda does not dispute that the affidavits raise fact
issues that: (1) the absence of a flame retardant in the SPF or a complete thermal barrier contributed
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to cause the fire to spread; and (2) Buckstop sustained damages as a result of the fire.” By
conceding, for purposes of this appeal, proximate cause and damages, Castaneda has narrowed the
issue on appeal to whether he breached any duty owed to Buckstop. According to Castaneda,
Buckstop’s negligence claim required expert testimony to demonstrate that the standard of care
applicable to an insulation installer required Castaneda to apply a fire retardant to the insulation
and to install a thermal barrier. Castaneda emphasizes that Buckstop produced no expert testimony
establishing the standard of care applicable to Castaneda or his alleged breach of that standard of
care. In response, Buckstop argues expert testimony is not needed to establish the standard of care
in this case, and even if it were, the expert reports produced by Buckstop were sufficient evidence.
The determination of whether expert testimony is needed to establish the standard of care
under the facts of this case is a question of law. FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d
84, 89 (Tex. 2004). Thus, we “review de novo the trial court’s determination that expert testimony
was necessary in this case to establish the applicable standard of care.” Id. at 90. “Expert testimony
is necessary when the alleged negligence is of such a nature as not to be within the experience of
the layman.” Id. “In determining whether expert testimony is necessary to establish negligence
Texas courts have considered whether the conduct at issue involves the use of specialized
equipment and techniques unfamiliar to the ordinary person.” Id. at 91.
Applying this standard, in FFE Transportation Services, Inc. v. Fulgham, the supreme
court considered whether expert testimony was needed to establish the standard of care involving
breach of the defendant’s duty to inspect its refrigerated trailers. Id. at 86. Three hours after the
plaintiff, a long-haul truck driver, picked up the defendant’s refrigerated trailer, “the trailer’s upper
coupler assembly broke loose from the trailer, causing the trailer to separate from the tractor and
overturn.” Id. The resulting accident injured the plaintiff. Id. In considering whether the conduct
involved the use of specialized equipment and techniques unfamiliar to the ordinary person, the
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supreme court reasoned the “upper coupler assembly, kingpin, and base rail of a refrigerated trailer
are specialized equipment, and the proper inspection and maintenance of those parts involve
techniques unfamiliar to the ordinary person.” Id. at 91. The court explained “[f]ew people not
involved in the trucking industry are familiar with refrigerated trailers, the mechanisms for
connecting them to tractors, and the frequency and type of inspection and maintenance they
require.” Id. “While the ordinary person may be able to detect whether a visible bolt is loose or
rusty, determining when that looseness or rust is sufficient to create a danger requires specialized
knowledge.” Id. “Therefore, the layman does not know what the standard of care is for the
inspection and maintenance of the upper coupler assembly, kingpin, and base rail of a refrigerated
trailer.” Id. The supreme court held “the trial court correctly determined that expert testimony was
necessary to establish [the defendant]’s negligence.” Id.
Similarly, in VIA Metropolitan Transit v. Garcia, 397 S.W.3d 702, 709 (Tex. App.—San
Antonio 2012, pet. denied), this Court looked at whether specialized techniques unfamiliar to the
ordinary person were applicable in the context of a police officer directing traffic. This Court
concluded that the conduct at issue, the police officer’s actions in directing traffic, involved “the
use of techniques unfamiliar to the ordinary person.” Id. “[B]ecause an ordinary person lacks the
requisite authority and training to direct traffic,” this Court held the police officer’s “alleged
negligence is not within the experience of a layman” and thus the plaintiff “was required to present
expert testimony to establish the standard of care applicable to a law enforcement officer directing
traffic and evidence of the breach of that standard.” Id.
In contrast, the supreme court concluded in Melody Home Manufacturing Co. v. Barnes,
741 S.W.2d 349, 355 (Tex. 1987), that expert testimony was not needed to establish the standard
of care. The plaintiffs bought a modular pre-fabricated home from the defendant, Melody Home.
Id. at 351. After they moved in, “they continually experienced puddles and dampness inside the
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house.” Id. “Over two years after moving in, they discovered that a sink was not connected to the
drain in one of the interior walls.” Id. They sued Melody Home under the Deceptive Trade
Practices-Consumer Protection Act, alleging Melody Home had breached its implied warranty. Id.
In considering whether expert testimony was needed to establish the standard of care, the supreme
court reasoned that “[i]n this case, the breach of the implied warranty was plainly within the
common knowledge of laymen and did not require expert testimony.” Id. at 355. “The jurors had
sufficient knowledge to find that the failure to connect a washing machine drain would not be
considered good and workmanlike by those capable of judging repair work.” Id.
Buckstop argues the facts of this case are similar to Melody Home and the jury will not be
asked to determine questions outside its knowledge:
[T]he jury will not determine the negligence issue based upon knowledge of the
chemistry of spray polyurethane foam, or the chemistry of fire retardants, or
thermal barriers and fire dynamics. We already know what fire retardant is, and
what it does. We already know what a thermal barrier is, and what it does. We
already know that neither was applied nor installed; it is not a case of whether they
were properly or correctly applied. We do not ask that the jury be instructed that
the failure to apply fire retardant or install a thermal barrier constitutes negligence.
Buckstop only asks that a duty issue such as the one quoted in Melody Home be
employed, and the jury be asked to determine whether [Castaneda]’s acts or
omissions constituted negligence under that standard. Plainly, a Texas jury can do
that. . . . The essential facts from which [Castaneda]’s duties arose, and upon which
its negligence or lack of it will be judged, are easily comprehensible and, in fact,
are already known. Nothing about it is over the heads of jurors of ordinary
intelligence and experience.
We disagree with this reasoning by Buckstop. The issue is not whether the jury can understand
what a fire retardant is or what a thermal barrier is. The issue is not whether a fire retardant or
thermal barrier was applied or installed. The issue is not whether the jury could understand the
essential facts of the case. The issue is what standard of care is applicable to Castaneda as an
installer of SPF in a commercial building. That is, must a reasonably, prudent installer of SPF
always apply fire retardant to SPF and place a thermal barrier? Is the failure to do so a breach of
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the standard of care applicable to installers of SPF in commercial buildings? It is the answer to
these questions that must be within the common knowledge of the layman before expert testimony
would be considered unnecessary. We conclude they are not within the layman’s knowledge. As
noted by Castaneda, “the selection and installation of insulation, its potential flammability,
applicable industry standards, the content and applicability of building codes, and the existence of
responsibility for adding a thermal barrier are all matters beyond jurors’ common understanding.”
Thus, we hold that expert testimony was necessary in this case to establish the standard of care
applicable to Castaneda and any breach of that standard.
Buckstop argues that it did provide expert testimony of the standard of care and breach in
the form of Mark Sutherland’s affidavit and expert report. Buckstop first points to the following
statements from the report’s “Cause” section:
The cause of the fire is not disputed and was the result of a welder igniting the SPF.
The issue is how quickly the fire spread and why it could not be extinguished when
it was discovered as a very small fire. As we found from the UL 94V testing, there
was no fire retardant in the foam and no thermal barrier applied to the exposed
surface of the foam. SPF’s are required to include a flame retardant to limit flame
spread if accidently ignited and a thermal barrier is required to delay SPF’s
involvement in a fire.
Buckstop next points to statements in the “Fault” section of the report:
The International Building Code states that a thermal barrier or ignition barrier is
required on all spray foam installation used in residential and commercial
structures. Generally, a code-prescribed thermal barrier (1/2-inch thickness gypsum
wall board or equivalent) is required (2012 IBC § 2603.4).
Finally, Buckstop quotes the following from the “Summary” section of the report:
Once the front wall was ignited and burning, the fire then quickly spread up the
wall to the exposed SPF on the ceiling, which quickly spread the fire throughout
the structure. The SPF should have had a 15 minute thermal barrier installed as
required by the IBC. This would have allowed the fire to burn itself out or allowed
the fire department to get it under control.
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Buckstop thus argues these excerpts from Sutherland’s report are sufficient evidence of the
standard of care for an installer of SPF. According to Buckstop, Sutherland’s report is evidence
SPF should not be installed without fire retardant or a thermal barrier. Buckstop then makes the
inference that because Castaneda installed SPF, he was required to use fire retardant with the SPF
and create a thermal barrier.
However, although Sutherland’s report cites the International Building Code for the
proposition that a thermal barrier is required on all SPF used in residential and commercial
structures, there is no evidence that the International Building Code was applicable to the
renovation project in Leakey, Texas, or that the standard of care required an SPF installer to follow
the International Building Code. Moreover, nothing in Sutherland’s report states that installation
of a thermal barrier is the responsibility of the SPF installer or that an SPF installer violates the
applicable standard of care by not installing a thermal barrier in addition to installing SPF. It is
undisputed that the general contractor in this case hired Castaneda solely for the purpose of
blowing SPF in the walls and ceilings of the renovation project. It is also undisputed that the
general contractor did not request that Castaneda apply flame retardant or that he install a thermal
barrier. 1 Sutherland’s report is simply not evidence that the standard of care in this case required
Castaneda, as the SPF installer, to install a thermal barrier.
With regard to the fire retardant, Castaneda testified in his deposition that sometimes he
applies a fire retardant when the builder hiring him asks him to do so. Castaneda testified he does
not apply a fire retardant when the builder does not ask him to do so. And, on most jobs, he does
not apply fire retardant. Castaneda testified the fire retardant is sold separately from the SPF.
1
In his no-evidence motion for summary judgment, Castaneda argued that the general contractor hired another
subcontractor to install the thermal barrier. At the summary judgment hearing, Castaneda’s counsel again argued to
the trial court that the general contractor hired another subcontractor to install the thermal barrier. However, evidence
of this fact is not contained within the summary judgment record.
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Castaneda explained application of the fire retardant is a separate process, involving a separate
machine, and is applied after the SPF. Buckstop argues the standard of care requires an installer of
SPF to apply fire retardant to SPF and relies on this statement from Sutherland’s report: “SPF’s
are required to include a flame retardant to limit flame spread if accidently ignited and a thermal
barrier is required to delay SPF’s involvement in a fire.” This statement, however, is conclusory.
The report does not state the origin of any such requirement. Further, the report does not state
whose duty it is to fulfill the requirement. See Gonzales v. Shing Wai Brass & Metal Wares
Factory, Ltd., 190 S.W.3d 742, 746 (Tex. App.—San Antonio 2005, no pet.) (explaining that
affidavits supporting and opposing a motion for summary judgment “must set forth facts, not
merely conclusions” and that a “conclusory statement is one that does not provide the underlying
facts to support the conclusion and is insufficient to create a question of fact to defeat summary
judgment”). Indeed, the following statement in the report’s “Summary” section suggests that any
such duty lies with the manufacturer, not an installer:
Once the SPF ignited, it should have burned very slowly and formed a charred
exterior limiting the flame spread. According to the manufactures [sic] website,
they use the ASTM E84 flame spread test to classify their SPF as a Class I material,
with a flame spread of less than 25, which is considered acceptable. However, this
test is flawed when used on SPF and does not actually show the true potential for
flame spread. The UL 94 test is a more accurate test for flame spread for SPF and
this test showed that no flame retardants were present in the material.
Thus, with respect to the lack of fire retardant in the SPF, Sutherland’s report finds fault with the
SPF manufacturer, not Castaneda. Sutherland’s report is not evidence that the standard of care
required Castaneda to apply fire retardant to the SPF after it was installed.
Finally, Buckstop points to Castaneda’s own deposition testimony that SPF “should have
a retardant” as evidence that he breached the standard of care. In context, Castaneda testified as
follows:
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Q: You’ve been applying this foam now for at least 13 years with the company
you own, correct?
[Objection, form]
A: Different – not the same one but different chemicals.
Q: Okay. Have you ever had a fire occur before regarding a foam that you were
spraying?
A: No.
Q: Do you understand what I mean when I’m talking about the foam being fire
retardant?
A: Well, I don’t know, but I think it should have a retardant.
*****
Q: And you don’t apply any fire retardant to the foam on your own; do you?
A: When the builder asks for it.
Q: Has a builder asked for it in the past?
A: Yes.
Q: What fire retardant do you apply to the foam?
[Objection, form]
A: I don’t know. It’s just a retardant.
Q: And is that sprayed on before or after, or is it mixed with the foam?
A: After.
Q: Do you use a different machine to apply the retardant?
A: Yes, it’s different.
Q: And where do you get the fire retardant?
A: From where you buy the same chemical.
Q: So, the company sells the foam separately from the fire retardant; is that
what you’re saying?
A: Yes.
Q: And did your contract with the builder require that you apply fire retardant?
[Objection, form]
A: No.
Q: Why do you – why is fire retardant applied to buildings?
[Objection, form]
A: I don’t know.
Q: What is the name of the fire retardant?
A: Block Fire, something like that.
Q: And how often do you apply fire retardant to the foam in your work?
A: When the builder or the homeowner asks for it. . . .
Q: Do you apply the fire retardant on most jobs that you do?
A: No.
Read in context, Castaneda did not testify the standard of care required him to apply fire retardant
to the SPF. He testified he applied fire retardant when asked to by the builder or homeowner.
According to Castaneda, most of the time, he did not apply the fire retardant. However, he would
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apply the retardant if it were him. This is not evidence of a standard of care that applies to SPF
installers.
CONCLUSION
We conclude that expert testimony was necessary to establish the applicable standard of
care in this case. Because Buckstop presented no expert testimony establishing either the standard
of care applicable to Castaneda or his violation of that standard, the trial court did not err in
granting Castaneda’s no-evidence motion for summary judgment. We therefore affirm the
judgment of the trial court.
Karen Angelini, Justice
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