John O'Brien Dec. 19, 2012, 9:46am
CHARLESTON – After being told it could not seek damages to rebuild itself, Porker’s Bar-B-Q settled its lawsuit against General Electric and Wal-Mart on the eve of trial.
The lawsuit claimed they were responsible for property damages from a fire caused by a freezer GE made and Wal-Mart sold. It was filed in 2011 by Jack Bruer and Pam Napier, the owners of Jack and Pam’s who operated Porker’s, and the settlement was entered 10 days after U.S. District Judge Joseph Goodwin granted the defendants’ motion for summary judgment.
Terms of the settlement were not disclosed. The two sides had a two-hour settlement conference on Dec. 17.
The plaintiffs claimed a General Electric freezer bought three years earlier at a Sam’s Club store caught fire and destroyed the business premises of Porker’s, located in Cross Lanes, on Aug. 19, 2009.
After an investigation, the cause of the fire was found to have been a malfunction of the compressor unit and/or power cord, the lawsuit said. The defendants should have known about the risks of the freezer, it adds.
Despite insurance company payouts, Porker’s has been out of operation since the fire. During its years of operation, Porker’s never turned a profit, Goodwin wrote.
The plaintiffs claim the freezer was not safe for its intended use and also made claims of defective design, breach of implied warranty and negligence.
Porker’s made claims for destroyed property and lost business during restoration, but Goodwin’s Dec. 7 ruling concerned three types of other damages requested. They were the cost to build a new Porker’s, lost franchise and royalties fees and the cost of preparing the franchise agreement.
Goodwin wrote Porker’s was harmed by the fire but not destroyed, and the insurance payouts were designed to get business resumed. The company requested $105,935 to rebuild in its lawsuit.
“The defendants rightfully point out that the plaintiffs stated in their deposition testimony that Porker’s restaurant closed not because of the fire but because the landlord refused to renew their lease,” Goodwin wrote.
Bruer planned to go back to business after repairs were completed, but they never got the chance. The plaintiffs claim the fire was still the proximate cause of the restaurant because it led to the breakdown in the relationship between them and the landlord.
Goodwin found that a reasonable jury could not agree with that argument.
“The plaintiffs’ interactions with the landlord after the fire were an independent cause that severs the chain of causation between the fire and the loss of space,” he wrote.
As for the lost franchise and royalties fees, the plaintiffs sought $55,000 they say they would have earned if another person had finalized his purchase of two Porker’s franchises.
“Clearly, in itself, the fire damage to the original Porker’s location does not make it impossible for the plaintiffs to sell a franchise to a franchisee,” Goodwin wrote.
Goodwin also agreed that the defendants were not liable for the cost of preparing the franchise agreement.
“Here, the fire was neither the proximate cause of the loss of the franchise agreement, but even if it were, it is certainly not reasonably expected that the plaintiffs would only have a single paper copy of a document they allegedly spent tens of thousands of dollars to produce,” Goodwin wrote.\
The case was scheduled for trial on Dec. 18. Representing Porker’s was Dan Greear, a former attorney general candidate who is a partner at Kesner, Kesner & Bramble. He is also part of AG-elect Patrick Morrisey’s transition team.
A pizza restaurant now occupies the space on which Porker’s was built, Goodwin wrote.