Affiliated FM Ins. v. Southland HVAC & Construction CA2/1

Filed 8/1/13 Affiliated FM Ins. v. Southland HVAC & Construction CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

AFFILIATED FM INSURANCE B241439 COMPANY, (Los Angeles County Plaintiff and Appellant, Super. Ct. No. BC440756)

v.

SOUTHLAND HVAC & CONSTRUCTION, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County. Terry A. Green and Robert H. O’Brien, Judges. Affirmed. Carlson & Messer LLP, Charles R. Messer and Martin Schannong for Plaintiff and Appellant. Schaffer, Lax, McNaughton and Chen and Russell A. Franklin for Defendant and Respondent. ___________________________________

The roof of a commercial building collapsed after a heavy rain causing over a million dollars in damages to a tenant of the building. The tenant’s insurer, Affiliated FM Insurance Company, brought this action in subrogation against defendant Southland HVAC & Construction, Inc., alleging that Southland’s negligence in altering the drains on the roof caused it to collapse. The trial court granted Southland’s summary judgment motion and entered judgment for Southland. We affirm. FACTS AND PROCEEDINGS BELOW The following facts are undisputed. La Curacao, a retailer, was a tenant of a building in Fountain Valley when a 600 square foot section of the building’s roof collapsed. At the time the roof fell in, Affiliated was La Curacao’s insurer for property damage and business interruption losses. Affiliated’s investigation following the collapse showed that a secondary drain, called a scupper, was positioned approximately four inches above the roof deck near the corner of the roof that fell. The California Building Code in effect at the time required that scuppers be placed no higher than two inches above the roof deck. Approximately four years before the accident Southland made certain repairs and renovations to the roof of the building under a contract with the building’s owner. This work included removing and replacing rooftop HVAC units and installing a new roofing “membrane” over the original flat roof. The architectural plans and scope-of-work documents for the job did not call upon Southland to make any alterations to the roof’s drainage system. After settling La Curacao’s claim, Affiliated brought this negligence action against Southland alleging in relevant part that it “negligently, carelessly and recklessly built, installed, inspected, failed to warn about, and approved roof-drains that were too small and that were too high, at the southeast-corner of the building” and that this negligence “legally caused damages to the plaintiff[.]” Southland answered and moved for summary judgment on the ground, among others, that the undisputed evidence shows it did not perform the original placement of