UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS ARBELLA MUTUAL INSURANCE CO., as subrogee of Kathleen Chapin and Timothy Chapin Plaintiff, V. Civil No. 16-10656-LTS FIELD CONTROLS, L.L.C., and PACIFIC ELECTRONICS CORP. Defendant(s). ORDER ON MOTIONS FOR SUMMARY JUDGMENT (DOC. NOS. 90, 91) AND MOTION IN LIMINE (DOC. NO. 92) April 4, 2019 SOROKIN, J. This is a products liability dispute arising out of a failure in the heating system of Kathleen and Timothy Chapin's home which was insured by Plaintiff Arbella Mutual Insurance Company ("Arbella"). Arbella brought suit against Defendants Field Controls, L.L.C ("Field Controls") and Pacific Electronics Corporation ("Pacific Electronics") for the cost of repairing the damage. Arbella's complaint alleged a single count of negligence against each of the two defendants. Doc. No. 1-1. The defendants each asserted crossclaims against the other for contribution and indemnification. Doc. Nos. 8, 21. At the conclusion of discovery, Field Controls and Pacific Electronics moved for summary judgment. Doc. Nos. 90, 91. Additionally, Field Controls moved to exclude the opinions and testimony of Arbella's expert. Doc. No. 92. For the reasons set forth below, the motions for summary judgment are DENIED IN PART AND ALLOWED IN PART, as described herein. The motion in limine is DENIED.I. BACKGROUND In February 2015, the heating system at the Chapins' home in Chatham, Massachusetts shut off and stopped operating, causing the pipes to freeze. Doc. No. 115 at 1-2. The frozen pipes, in turn, caused water damage to the home. I_d. at 2. The Chapins submitted a claim to their insurance company, Arbella, which paid approximately $200,000 to repair the home. Id. Arbella alleges that the heating system failed because of a faulty vent damper which was manufactured by Field Controls and Pacic Electronics. \"A vent damper is installed on boiler vent ductwork to limit the amount of residual heated air that can exit a dwelling through the boiler vent, and also prevent cold air from entering the dwelling.\" I_d. at 4. Essentially, when the thermostat in the home calls for heat, \"the damper's motor assembly is energized, and it rotates the damper from the 'closed' position to the 'open' position,\" which \"allows products of combustion (such as carbon monoxide) to exit the dwelling during boiler operation.\" Id. at 4-5. When the thermostat no longer calls for heat, the damper's motor assembly is again energized and it rotates the damper to the \"closed\" position, preventing outside air from coming into the home through the vent ductwork. Id. at 5. When a vent damper fails to operate properly, it is designed to remain in a \"closed\" position, which \"prevents the boiler from calling for heat, which prevents potentially toxic gases (carbon monoxide) from building up in the home.\" I_d. The vent damper in the Chapins' home was manufactured by Field Controls. I_d. at 8. The motor assembly inside the vent damper was manufactured by Pacic Electronics. I_d. at 6. On multiple occasions, Arbella's experts, John Certuse and Victor DaCosta, tested the vent damper from the Chapins' home. E Doc. No. 104-6 at 3. Certuse offers an expert report in which he concludes that \"the Pacific Electronics J206 motor to the Field Controls GVD 5 vent damper failed because of an intemal manufacturing defect . . . and that this defect existed prior to the time it left Pacic Electronics' factory and Field Controls' assembly plant.\" Li. at 19. Field Controls moved to exclude Certuse's and DaCosta's opinions and testimony. Doc. No. 92. Arbella opposed. Doc. No. 106. Both Field Controls and Pacic Electronics also moved for summary judgment against Arbella. Doc. Nos. 90, 91. Arbella opposed. Doc. Nos. 101, 103. Additionally, Field Controls moved for summary judgment against Pacic Electronics. Doc. No. 91. Field Controls argues that \"[e]ven if Plaintiff could establish a manufacturing defect existed in the J -206 motor, Pacic Electronics, as the motor manufacturer, owes Field Controls common law indemnity\" because Field Controls is without fault. Doc. No. 95 at 9-10. Pacic Electronics opposed. Doc. No. 99. The Court heard argument on each of the pending motions on March 25, 2019. II. LEGAL STANDARD Summary judgment is appropriate when \"the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.\" Fed. R. Civ. P. 56(a). A genuine dispute \"is one on which the evidence would enable a reasonable jury to nd the fact in favor of either party.\" Perez v. Lorraine Enters. Inc., 769 F.3d 23, 29 (1st Cir. 2014). \"A 'material' fact is one that is relevant in the sense that it has the capacity to change the outcome of the jury's determination.\" Li. (citation omitted). The Court is \"obliged to view the record in the light most favorable to the nonmoving party, and to draw all reasonable inferences in the nomnoving party's favor.\" LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 ( 1st Cir. 1993). However, the Court must ignore \"conclusory allegations, improbable inferences, and unsupported speculation.\" Sullivan v. City of Springeld, 561 F.3d 7, l4 (lst Cir. 2009). Given the interrelated nature of the claims, the Court nds that because there is a genuine dispute of material fact as to the negligence claim, there is also such a dispute as to the breach of warranty of merchantability claim. Whether the product was defective and whether it was unreasonably dangerous are questions for trial, for the same reasons expressed above. However, one more point bears mention. At the hearing, both defendants argued that they were not on fair notice of the potential breach of warranty claim based on the complaint and that the Court should dismiss this claim on that basis. While the Court considers seriously the requirements of fair notice, it finds that given the interrelated nature of negligence and breach of implied warranty of merchantability claims in Massachusetts, fair notice of the former in this case (proceeding as it is on the very same evidence) provided fair notice of the latter. While the complaint in this case was at best sparse, the defendants conceded at the hearing that they were on fair notice of Arbella's claim of a manufacturing defect sounding in negligence. The S] C has been unequivocal that \"[a] defendant cannot be found to have been negligent without having breached the warranty of merchantability.\" Halm, 462 N.E.2d at 275. Accordingly, the Court denies summary judgment on the breach of implied warranty of merchantability claim insofar as it is premised on a manufacturing defect theory. C. Failure to Warn Claims With respect to a negligence claim, \"a manufacturer of a product, which the manufacturer knows or should know is dangerous by nature or is in a dangerous condition, is under a duty to give warning of those dangers to persons who it is foreseeable will come in contact with, and consequently be endangered by, that product.\" MacDonald v. Ortho Pharm. Com., 475 N.E.2d 65, 68 (Mass. 1985) (quotation marks and citation omitted). \"A failure to give adequate warnings, however, will not establish negligence where the lack of such warnings is not the 10 proximate cause of a plaintiff's injuries.\" Pub. Serv. Mut. Ins. v. Empire Comfort Sys, Inc., 573 F. Supp. 2d 372, 378 (D. Mass. 2008). Alternatively, a plaintiff may pursue a claim that the seller breached the implied warranty of merchantability under a theory that the product lacked adequate warnings. Under this theory, strict liability is imposed when the product is found to be unreasonably dangerous due to \"a warning defect, that is, a failure reasonably to warn of the product's foreseeable risks of harm.\" Evans, 990 N.E.2d at 1010. However, the alleged defective (or nonexistent) warning must still be the cause of the plaintiff's injury, even under a breach of warranty of merchantability theory. Restatement (Second) of Torts 402A. At the hearing, counsel for Arbella argued that because the vent damper and motor came with no warnings whatsoever, both Pacic Electronics and Field Controls are liable for negligence and breach of the implied warranty of merchantability. Under either theory, Arbella would have to prove that the lack of such warnings caused the damage to the Chapins' home. At the hearing, Arbella explained the motor should have carried the warning that if it failed the heating system would not operate. At best, that is a warning that the vent damper is an essential component of the heating system. Arbella fails to submit sufficient evidence to establish that this warning was either a cause in fact or proximate cause of any injury. Telling homeowners that various parts of their heating system are essential to the functioning of their heating system is beyond obviousif the heating system fails, it will not produce heat. Fairly, it would also tell consmners which particular components to scrutinize or to monitor more closely. But there is no evidence in the record that such a warning would have cured any defect. Such a warning does not provide any useful information to a consumer in a way that would allow them to take reasonable precautions. Moreover, the only reasonable inference permitted by the evidence submitted is that consumers engage heating professionals to monitor their heating systems, as the Chapins did. Such professionals know (a) that if the system fails there is no heat and (b) if the vent damper fails it precludes heating operation.5 In any event, the evidence shows there was some form of a waming. Field Controls submitted the Gas Vent Damper User Manual, Doc. No. 96-7, which contains a wamin g titled \"To the user.\" The waming reads: For continued safe operation the appliance device combination should be inspected annually by a qualified service agency. It is recommended that the homeowner should have the vent system and the damper device examined annually for deterioration from corrosion or other sources. This inspection should be performed prior to and during each heating season. I_d. at 2. There is no evidence in the record from which a jury could conclude that this warning was inadequate or that any such inadequacy was causally related to the damage the Chapins' home suffered. Accordingly, no reasonable jury could fn1d in favor of Arbella on a failure to warn theory on either the negligence or breach of implied warranty claim. The defendants' motions for summary judgment are ALLOWED to that extent.6 D. 93A Claim As previously discussed, Arbella's bare-bones complaint alleged only a single count of negligence against each defendant. Doc. No. 1-1. In a footnote in each of its two oppositions to surmnary judgment, Arbella (for the first time) asserted that \"it is entitled to recover by reason of 5 If a gas vent damper stops working properly, it is designed to remain in a closed position, preventing the heat from turning on in the house. Doc. No. 115 at 5. This is required by national code. Id. 6 At the hearing, the defendants raised serious questions about the timing of Arbella's disclosure that it intended to proceed on a failure to warn theory. Arbella asserts that based on the complaint and the applicable law, it was not precluded from doing so. Because the Court allows surmnary judgment on the merits of Arbella's proffered failure to warn claims, it need not reach the notice and faimess questions presented by the defendants at the hearing. 12