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Akins v. Ben Milam Heat, Air & Electric, Inc.

Court of Appeals of Oklahoma, Division III

January 11, 2019

KACY AKINS, INDIVIDUALLY, AND VELVA AKINS, INDIVIDUALLY AND AS NEXT FRIEND OF D.N., A MINOR, Plaintiffs/Appellants,
v.
BEN MILAM HEAT, AIR & ELECTRIC, INC., Defendant/Appellee.

          Mandate Issued: 10/16/2019

          APPEAL FROM THE DISTRICT COURT OF RADY COUNTY, OKLAHOMA HONORABLE W. MIKE WARREN, TRIAL JUDGE

          A. Laurie Koller, CARR & CARR, Tulsa, Oklahoma, and Tye H. Smith, CARR & CARR, Oklahoma City, Oklahoma, for Plaintiffs/Appellants,

          Nathan E. Clark, Rachel M. Rogers, RHODES, HIERONYMUS, JONES, TUCKER & GABLE, P.L.L.C., Tulsa, Oklahoma, for Defendant/Appellee.

          BARBARA G. SWINTON, PRESIDING JUDGE

         ¶1 Plaintiffs Kacy Akins, his former wife, Velva Akins now Phillips, and her son, D.N. (collectively, Plaintiffs), appeal a judgment based on a jury verdict in favor of Defendant Milam Heat, Air & Electric Inc. (Milam). Plaintiffs' cause of action for negligence sought damages for carbon monoxide (CO) poisoning allegedly caused by Milam's failure to properly and safely maintain, inspect, and/or warn of a hidden dangerous condition existing in the gas furnace in their home. We conclude the trial court abused its discretion by determining Plaintiffs breached their duty to preserve evidence by removing their gas furnace and its ventpipe or "flue" and lastly by sanctioning them in giving an adverse inference instruction to the jury. This record shows a complete absence of evidence of pre-litigation conduct which was in bad faith, willful or intentional. The admission of irrelevant evidence concerning the spoliation circumstances improperly made that issue the focus of the trial instead of the merits, and prejudiced Plaintiffs' right to a fair trial. The judgment in favor of Milam is reversed, and a new trial is granted.

         UNDISPUTED FACTS

         ¶2 Milam is a business in Chickasha, Oklahoma, in Grady County. On October 26, 2007, Milam's heat and air technician, Andy Adkins, went to Plaintiffs' home in Chickasha for a "no heat" service call. Adkins cleaned rust from the gas furnace's burners and replaced burned wires. After cycling the furnace several times, he told Mrs. Akins the furnace was operating okay and gave her a repair invoice.

         ¶3 Just before midnight November 6, 2007, Mr. Akins was awakened before midnight by a loud noise. He got up and found Mrs. Akins on the bathroom floor, passed out with a bloody face. Mr. Akins screamed for his stepson, D.N., who did not respond. Mr. Akins called an ambulance, Mrs. Akins was transported to the local emergency room, and Mr. Akins drove himself there. While waiting in the lobby, Mr. Akins passed out, was evaluated, and admitted to the hospital.

         ¶4 During treatment Mrs. Akins inquired about D.N., then 17 years of age. Soon after, her relatives found D.N. in his bedroom and were dragging him outside when Chickasha Police Officer T. Breath, who had been dispatched to the scene, arrived to help. D.N. was transported by ambulance to the hospital.

         ¶5 Additionally, on November 6, 2007, the local firemen at the scene ran a CO test inside the house with a meter that starts to alert at "35." According to Officer Breath, the CO meter read "1100 (Incident Level)." The firemen told Officer Breath not to go back into the residence, turned off Plaintiffs' gas furnace, and opened the windows to clear the air. Officer Breath called the police dispatcher, who then called the home of Ivan Reed, a local heat and air technician for Milam, woke him up, asked for his help and then gave him the address. Mr. Reed arrived between 1-2 a.m. using his flashlight in the dark house to locate the gas fueled furnace in a laundry room closet.

         ¶6 Mr. Reed checked the furnace burner, cleaned off some rust, inspected the heat exchanger for cracks "as best he could," but did not see any. He also looked up the furnace vent or "flue" and did not see any black soot. He then got his ladder, climbed up on the roof, and used his flashlight to see if the flue was obstructed "with a bird nest or something else" that would prevent CO and other gases from properly venting outside.

         ¶7 Mr. Reed then asked the firemen to run another test for CO, and they observed the levels in the house begin to rise after he started the furnace. Officer Breath testified Mr. Reed stated, "I don't know what's going on, but I disabled the unit so it won't -- you can't turn it back on." Mr. Reed then asked the police officer to tell the homeowners to call Milam "first thing in the morning so that they could discuss the way they are going to fix this."

         ¶8 Testing revealed each family member had elevated carboxyhemoglobin levels in their blood confirming carbon monoxide (CO) poisoning. They all were treated with supplemental oxygen, Mrs. Akins and D.N. were released after their oxygen levels normalized, and Mr. Akins was kept for observation. The following timeline demonstrates the events after his release from the hospital:

Nov. 8, 2007 - Mr. Akins arrived home from the hospital and called two local HVAC companies. Meli H&A looked at the furnace and submitted a quote for new gas furnace.
Nov. 9, 2007 - Mr. Akins met with Albright H&A about need for replacing furnace.
Nov. 12, 2007 - Mr. Akins received Meli H&A's proposal for new electric furnace.
On or before Nov. 13, 2007 - Mr. Akins retained Carr & Carr (Law Firm)
Nov. 13, 2007 - Law Firm wrote letter to Milam, advising they were retained by the Akins family "concerning the CO poisoning they sustained after the work Milam had performed on their heating unit".
Nov. 19, 2007 - Mr. Akins accepted Albright H&A's proposal to replace gas furnace with new electric heat pump; order was placed.
Nov. 26, 2007 - Milam's Insurer, Hanover Ins. Grp, responded to Law Firm; requested: 1) the family's authorization for medical records, 2) clarification of date of loss; 3) "records pertaining to the care and maintenance of the furnace, names of manufacturer, initial installer and any other companies who may have done work on the furnace "; 4) "to inspect this furnace at your earliest convenience"; and also 5) "if repairs have been done we will need the name and contact information of the company doing such repairs." Insurer finally asked to take the Akins family's statements, advising of its willingness to get statements "after the holidays" but asking for "the inspection of the furnace to take place as soon as practicable, to avoid any spoliation issues."
Dec. 3, 2007 - New electric heat pump installed approximately two weeks after Mr. Akins accepted bid (see November 19, 2007); the installers carried the furnace to his waterproof backyard shed where it was covered and stored; flue/vent pipe to furnace apparently discarded.
On or about Jan. 7, 2008 - Mr. Akins testified he and his brother-in-law removed the original gas water heater about two months after CO incident, replaced with an electric one, and carried the gas water heater to the curb for pickup. The furnace and water heater were housed in the same utility closet.
Jan. 22, 2008 - Milam and Insurer's expert went to the Akins' home to inspect the furnace.
Jan. 24, 2008 - Insurer's letter to Law Firm, insisting on completing the inspection of the Akins' furnace alleged to be leaking CO. Noted "upon arrival at your client's home on [1-22-2008], our expert and insured found the original furnace which is the subject of this action had been removed from the utility closet."

         Dec. 17, 2008 - Furnace removed from the Akins' shed for testing requested by Insurer; Milam chose location at DeHart Heat & Air; Plaintiffs' truck was too small to transport furnace in an upright position and requested Milam transport to DeHart; test attended by Dr. Block and Insurer's expert was to determine if the furnace produced excessive CO under optimal conditions; CO test result 2000 parts per million (ppm) (testing level). Later inquiry to DeHart revealed the furnace was lost. [1]

         Litigation History

         ¶9 On April 19, 2009, Plaintiffs filed their petition against Milam, alleging negligent failure to properly and safely maintain, inspect, and/or warn of a hidden dangerous condition of the furnace in their home. They further alleged Milam "held itself out to be a professional in the field of residential heating installation and maintenance."

         ¶10 Milam filed its answer on May 28, 2009, admitting "it was in the business of providing heating installation and maintenance" but specifically denied Plaintiffs' allegations of negligence. As affirmative defenses, Milam asserted contributory negligence, actions by third parties over which it had no control, and any defect that existed was open and obvious. It denied the existence of an unreasonably hazardous condition and that it had notice of a defect.

         ¶11 Over the next 3-1/2 years, the trial court approved the parties' nine joint applications to extend the pretrial schedule. In January 2013, Milam moved for "Judicial Determination Of Its Entitlement To An Adverse Inference Jury Instruction Based On Plaintiffs' Willful Destruction Of Evidence." Noting Plaintiffs' alleged theories for the furnace's production of toxic CO, "inadequate combustion air supply in the closet and cracked furnace heat exchanger," Milam argued it had been substantially prejudiced because it was unable to fully defend against their case because Plaintiffs had "willfully" removed the furnace from the utility closet, without notice to Milam.

         ¶12 Plaintiffs responded, denying any destruction of evidence and arguing the factors for spoliation sanctions were not present. They also argued Milam's authority for "spoliation" of the furnace from the closet in which it operated was distinguishable. Milam replied, arguing Barnett v. Simmons, 2008 OK 100, 197 P.3d 12, controlled the issue of spoliation. The trial court denied Milam's sanction motion, holding the issues would be "ruled on... after the evidence is heard at trial."

         ¶13 Two years later, on April 2, 2015, the original trial judge recused himself from the case for reasons not disclosed by the record. Eighteen days later, a second judge was assigned to the case.

         ¶14 In June of 2015, Plaintiffs moved to transfer the trial to another county pursuant to 12 O.S. 140, [2] arguing the marital relationship between the Milam's owner, Royce Hannah, and the Court Clerk for Grady County, Lisa Hannah, and also her position as secretary/treasurer of Milam, raised concerns with Plaintiffs' ability to get a fair and impartial jury trial. Milam opposed Plaintiffs' motion to transfer, which the trial court subsequently denied.

         ¶15 On November 24, 2015, Milam moved for reconsideration of its sanction motion for an adverse inference jury instruction for Plaintiffs' spoliation of evidence. Plaintiffs objected that there was no new evidence or arguments and incorporated by reference their response to Milam's first sanction motion. They specifically requested a spoliation instruction against Milam, attaching evidentiary support for its possession and control of the furnace when it was permanently lost.

         ¶16 A hearing was held December 16, 2015, on the parties' numerous motions in limine and counter-motions for sanctions. [3] Concerning the latter, the order filed January 25, 2016, states the trial court reviewed "all of the related pleadings," [4] heard "all arguments," and reserved its ruling "until... determination during the trial process."

         Summary of the Jury Trial

         ¶17 During the five-day jury trial, January 25-29, 2016, the jury heard nine witnesses in Plaintiffs' case in chief premised on Milam's failure to properly service their gas furnace, specifically: 1) failure to perform a CO test, and 2) failure to warn Plaintiffs of the potential danger obvious to Milam at the October 26, 2007 service call. [5] To support their first theory of liability, expert testimony revealed several national associations/groups recommend testing for CO, but there are no Oklahoma or federal statutes or agency regulations requiring it. All experts agree the National Field Code sets a 400 ppm limit on the quantity of CO to safely exit the furnace's flue, and that value cannot be safely exceeded. [6] Plaintiffs' expert, Dr. Block, testified there were clear indications for the CO testing in this case: 1) the burned wires caused by flame-roll out; and 2) the installation in a closet without venting to provide an adequate combustion air supply did ...


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