Penn National Insurance v. HNI Corp. (482 F. Supp. 2d 568, 2007)

MEMORANDUM

JONES, District Judge.

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

On February 9, 2007, Magistrate Judge Smyser issued a Report and Recommendation (doc. 121) in the above-captioned matter. Objections to the Report and Recommendation were received from all parties. Accordingly, this matter is ripe for our review.

I. PROCEDURAL HISTORY:

This consolidated case arises out of a fire that occurred in a model home. In an effort to simplify what has become a decidedly complex matter, we will endeavor to separate its history in the following sections.

A. The Penn National Case

Penn National Insurance (“Penn National”) alleges that Elam G. Stoltzfus, Jr., Inc. (Stoltzfus) was the owner of property known and numbered as 1735 Eliza Way in the Pinehurst Hills Development in Me-chanicsburg, Pennsylvania. The structure on the property was a two-story, single-family home. Penn National alleges that construction of the home was completed on or about September 15, 2004 and that the home was no occupied or under a sales contract, but was being used as a model home. Stoltzfus was the holder of a policy of insurance, issued by Penn National, which covered the property.

Penn National alleges that the Defendants are in the business of manufacturing and installing indoor gas burning fireplaces and that Stoltzfus entered into a contract with the Defendants for the delivery and installation of two gas fireplace systems.

On October 1, 2004, a fire occurred at the model home which resulted in substantial destruction of the house and its contents. It is out of the ashes of that conflagration that this multi-tiered action arose. Penn National alleges that the cause of the fire was the improper installation and assembly of the chimney vent pipe for the fireplace located in the family room of the home.

Penn National’s complaint contains two counts: Count I is a negligence claim and Count II is a breach of contract claim. On October 14, 2005, the Defendants removed the case from the Pennsylvania Court of Common Pleas of Cumberland County to this Court. (Rec.Doe. 1). On October 21, 2005, the Defendant HNI Corporation filed an answer to the complaint. (Rec.Doe. 8). Also on October 21, 2005, Defendant Hearth and Home Technologies, Inc. (“Hearth and Home”) filed an answer to the complaint and a counterclaim against Penn National. (Rec.Doc. 9).

In its counterclaim against Penn National, Hearth and Home alleges that it subcontracted with Howard Haldeman t/d/b/a Haldeman Chimney Sweep (Haldeman) to install the fireplaces at the Stoltzfus property. Hearth and Home alleges that, as part of an independent contractor agreement, Haldeman was required to indemnify and defend it with respect to any claims arising from Haldeman’s work, including the work at the Stoltzfus property. Haldeman was the holder of a Commercial General Liability insurance policy, also issued by Penn National, which was effective at the time of the fire. Hearth and Home contends that as an indemnitee of Halde-man, it is entitled to coverage and a defense by Penn National under the Halde-man policy. Penn National, however, has refused to defend or indemnify Hearth and Home. The counterclaim contains three counts: Count I, is a breach of contract claim, Count II is a claim for breach of the covenant of good faith and fair dealing and Count III requests a declaratory judgment declaring that Penn National is under a duty to defend Hearth and Home in the action filed by Penn National as subrogee of Stoltzfus in the action filed by Travelers Insurance as subrogee of Doneckers; that Penn National and Haldeman are required to indemnify Hearth and Home for any and all sums recovered in either the case brought by Penn National or the case brought by Travelers; and that Penn National acted in bad faith in denying Hearth and Home coverage and a defense.

Also on October 21, 2005, Hearth and Home filed a third-party complaint against Haldeman. (Rec.Doc. 10). The third-party complaint contains three counts: Count

I is a claim for contribution, Count II is a claim for indemnification and Count III is a claim for breach of contract.

B. The Travelers Case

On April 10, 2006, Travelers Property Casualty Company of America (“Travelers”), as subrogee of Doneckers, Inc., filed a complaint against Hearth and Home and Haldeman. Travelers alleges that Do-neckers was in the furniture business and had furnished the model home. Travelers insured Doneckers and paid Doneckers for damages sustained by Doneckers resulting from the fire. Travelers’ complaint contains two counts: Count I is a negligence claim against Hearth and Home and Count II is a negligence claim against Haldeman.

On April 24, 2006, Haldeman filed an answer to Travelers’ complaint and a cross-claim against Hearth and Home for contribution and indemnification. On May 3, 2006, Hearth and Home filed an answer to Travelers’ complaint and a cross-claim against Haldeman for contribution and indemnification. On May 10, 2006, Hearth and Home filed a third-party complaint against Penn National, which contains the same three counts set forth in its cross-claim against Penn National in the Penn National Case.

C. Consolidation and Pending Motions

By an order dated August 16, 2006, the Travelers case was consolidated with the Penn National case. The case is currently on our September 2007 trial list.

The Magistrate Judge’s Report and Recommendation is issued with respect to six pending motions for summary judgment: 1) Travelers’ motion for partial summary judgment against Hearth and Home (doc. 67); 2) Penn National’s motion for summary judgment against Hearth and Home on its claims as subrogee of Stoltz-fus (doc. 62); 3) Haldeman’s motion for summary judgment or, in the alternative, partial summary judgment against Hearth and Home (doc. 64); 4) Hearth and Home’s motion for summary judgment against Haldeman (doc. 70); 5) Penn National’s motion for summary judgment against Hearth and Home on Hearth and Home’s counterclaims/third-party claims against Penn National (doc. 76); and 6) Hearth and Home’s motion for summary judgment against Penn National on Hearth and Home’s counterclaims/third-party claims against Penn National. (Rec. Doc. 73).

Magistrate Judge Smyser’s February 9, 2007 report renders recommendations on the six pending summary judgment motions. In summary, Magistrate Judge Smyser recommends that: 1) Travelers’ motion for partial summary judgment against Hearth and Home (doc. 67) be denied; 2) Penn National’s motion for summary judgment against Hearth and Home on its claims as subrogee of Stoltz-fus (doc. 62) be denied; 3) Haldeman’s motion for summary judgment or, in the alternative, partial summary judgment against Hearth and Home (doc. 64) be denied; 4) Hearth and Home’s motion for summary judgment against Haldeman (doc. 70) be denied; 5) Penn National’s motion for summary judgment against Hearth and Home on Hearth and Home’s counterclaims/third-party claims against Penn National (doc. 76) be granted; and 6) Hearth and Home’s motion for summary judgment against Penn National on Hearth and Home’s counterclaims/third-party claims against Penn National (doc. 73) be denied. (Rec. Doc. 121 at 96-97).

II. STANDARDS OF REVIEW:

A.Review of Magistrate Judge’s Report When Objections are

Filed

When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); see also 28 U.S.C. § 636(b)(1); Local Rule 72.31. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge’s proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir.1984).

B. Review of Magistrate Judge’s Report When No Objections Filed

When no objections are made to a magistrate’s report, the district court is not statutorily required to review a magistrate judge’s report before accepting it. See Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). According to the Third Circuit, however, “the better practice is to afford some level of review to dispositive legal issues raised by the report.” Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir.1987). When a district court accepts a magistrate judge’s report, the report becomes the judgment of the court. Id.

C. Summary Judgment Standard

Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.CivP. 56(c); see also Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir.1990). The party moving for summary judgment bears the burden of showing “there is no genuine issue for trial.” Young v. Quinlan, 960 F.2d 351, 357 (3d Cir.1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. See Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir.1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325, 106 S.Ct. 2548.

Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

It is important to note that “the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoran-da and briefs to establish a genuine issue of material fact.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir.1994) (citation omitted). However, all inferences “should be drawn in the light most favorable to the non-moving party, and where the non-moving party’s evidence contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.1992), cert, denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993) (citations omitted).

Still, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)(emphasis in original). “As to materiality, the substantive law will identify which facts are material.” Id. at 248, 106 S.Ct. 2505. A dispute is considered to be genuine only if “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Id.

III. DISCUSSION:

A. Travelers’ Motion for Partial Summary Judgment against Hearth and Home (doc. 67)

Travelers’, as subrogee of Doneckers, seeks summary judgment against Hearth and Home on Travelers’ negligence claim against Hearth and Home. Travelers’ seeks judgment in the amount of $100,353.11, the amount it paid to Doneck-ers for the furniture lost by Doneckers in the fire. Magistrate Judge Smyser recommends that we deny summary judgment because he finds that a genuine issue of material fact exists as to whether Halde-man was an independent contractor or an employee of Hearth and Home.

Hearth and Home objects to two individual statements made by the Magistrate Judge in rendering his recommendation that summary judgment be denied. First, Hearth and Home submits mistakenly omitted pages of the deposition of Stacy Fahnestock, the corporate designee of Penn National’s subrogee, Stoltzfus, in which Fahnestock testified that he was able to start the fireplace in question after a third try. Magistrate Judge Smyser had stated that Hearth and Home had not provided any record evidence to support its assertion that the fireplace was operating properly. While we shall consider Fahnestock’s testimony, it is our view that its inclusion in the record would not have altered Magistrate Judge Smyser’s recommendation. As it relates to this claim, the paramount issue is not the cause of the fire, but Haldeman’s status as either an employee or an independent contractor.

Hearth and Home also argues that Magistrate Judge Smyser incorrectly interpreted the testimony of David Albright, a field superintendent for Stoltzfus. Magistrate Judge Smyser stated that Albright’s testimony did not support the proposition that Stoltzfus was responsible for ensuring the completion of the fireplace system. (Rec.Doc. 121, p. 14). Hearth and Home argues that Albright’s testimony indicated that Stoltzfus, acting as the general contractor, would, at a minimum, be responsible for ensuring that the chimney and the chimney vent cap was on the roof, something that Haldeman’s expert theorized was not there. (Rec. Doc. 127 at 4). Al-bright testified as follows: “I would say that the limits of what I am responsible for are that they are — that the work is installed correctly from an aesthetic manner, that the other finishes that take place or work in conjunction with the installation, but I am not responsible for inspecting or verifying that the installation is correct.” (Rec. Doc. 127 at 4)(emphasis added). We have considered Albright’s testimony and find that Magistrate Judge Smyser’s conclusion more apt than that submitted by Hearth and Home. Furthermore and to reiterate, Magistrate Judge Smyser’s recommendation to deny summary judgment did not rest on the cause of the fire, but rather on an issue of fact regarding Halde-man’s status as either an employee or an independent contractor.

Accordingly, we shall overrule Hearth and Home’s objections to the portion of the Magistrate Judge’s report recommending denial of Travelers’ motion for summary judgment and shall adopt this portion of the Magistrate Judge’s report.

B. Penn National’s Motion for Summary Judgment against Hearth and Home on its Claims as the Subrogee of Stoltzfus (doc. 62)

Penn National, as subrogee of Stoltzfus, is seeking summary judgment against Hearth and Home as to Penn National’s negligence and breach of contract claims against Hearth and Home. Penn National is seeking judgment in the amount of $559, 373.70, the amount it paid to Stoltzfus pursuant to Stoltzfus’ policy of insurance with Penn National. Magistrate Judge Smyser recommends that we deny summary judgment with respect to the negligence claim because an issue of fact remains as to whether Haldeman was an independent contractor or an employee of Hearth and Home and that we deny summary judgment with respect to the breach of contract claim because Penn National has not presented any evidence regarding the measure of damages sustained by Stoltzfus. Magistrate Judge Smyser notes that another approach that could be taken would be to grant partial summary judgment as to the merits of the breach of contract claim without granting summary judgment as to damages.

Penn National objects to the portion of the Magistrate Judge’s report that recommends denial of summary judgment on the breach of contract claim, based upon Penn National’s failure to present evidence regarding the measure of damages. Penn National argues that the issue of damages is undisputed, but submits that if the Court finds to the contrary, we should adopt Magistrate Judge Smyser’s alternative recommendation and grant summary judgment on the merits but deny it as to the measure of damages.

Hearth and Home also objects to the Magistrate Judge’s recommendation and opposes Penn National’s objections. From what we can distill out of Hearth and Home’s objections, it appears that Hearth and Home objects to the Magistrate Judge’s finding that a contract existed between Hearth and Home and Stoltzfus. In opposing Penn National’s objections, Hearth and Home argues that summary judgment on the merits of the breach of contract claim cannot be granted because there are material questions of fact that remain, including whether Stoltzfus was eontributorily negligent.

As a threshold matter, we shall overrule Hearth and Home’s objection to the portion of the Magistrate Judge’s report that determines a contract did in fact exist between Hearth and Home and Stoltzfus. It is undisputed that a purchase order was submitted to Hearth and Home by Stoltz-fus for the purchase of the fireplace. We find, as Magistrate Judge Smyser alluded to, that the combination of the purchase order with the performance of the parties indicates the existence of a contractual relationship between them.

We believe the most prudent course is to adopt Magistrate Judge Smyser’s alternative recommendation and in so doing will grant summary judgment on the merits of the breach of contract claim and deny summary judgment relating to damages. As noted in the report, there remains a question of fact about the actual cause of the fire, which is reflected in the dueling expert reports. However, we have reviewed the expert reports and their conclusions indicate that the fire was caused by either the negligent installation or the premature start up of the fireplace. Neither of the reports implicate any alleged contributory negligence by Stoltzfus as a cause. As a result we find that Hearth and Home’s argument that a question of fact remains as to whether Stoltzfus was contributorily negligent is merely a red herring, and this objection shall be overruled. There is simply no basis in the record to support what appears to be a contrived defense, and thus no real factual dispute exists as to Stoltzfus’s conduct in this regard. Accordingly Penn National’s motion for summary judgment on the merits of the breach of contract claim will be granted, but we will deny the motion as to damages for the same reasons as cogently set forth by the Magistrate Judge. While the amount paid by Penn National is undisputed. Hearth and Home has raised questions relating to its reasonableness that preclude summary judgment.

C. Haldeman’s Motion for Summary Judgment or, in the alternative, Partial Summary Judgment against Hearth and Home and Hearth and Home’s Motion for Summary Judgment against Haldeman

Hearth and Home’s third-party claims (in the Penn National case) against Halde-man are claims for contribution, indemnification and breach of contract, and its cross-claims (in the Traveler’s case) against Haldeman are for contribution and indemnification. Haldeman’s cross-claims (in the Traveler’s case) against Hearth and Home are for contribution and indemnification. Magistrate Judge Smyser recommends that both Haldeman’s motion for summary judgment or, in the alternative, partial summary judgment against Hearth and Home and Hearth and Home’s motion for summary judgment against Haldeman be denied because various genuine issues of fact remain.

Within Magistrate Judge Smyser’s analysis of these motions, he concluded that the indemnity clause of the independent contractor agreement (“the Agreement”) entered into between Haldeman and Hearth and Home does not require Halde-man to indemnify Hearth and Home for Hearth and Home’s own negligence. (Rec. Doc. 121 at 54). Hearth and Home objects to this ruling. (Rec. Doc. 127 at 8).

The language of the indemnity provision of the Agreement is as follows:

Contractor [Haldeman] shall indemnify, defend, and hold Company [Hearth and Home] harmless from any and all claims, liability, loss, or damage, including reasonable attorney’s fees, arising by reason of the death or bodily injury of persons, injury to property or other loss or damage arising out of, concerning or affecting this Agreement or the business conducted by Contractor, including but not limited to, any acts or failure to act on the part of the Contractor, his agents, servants, or employees.

(Rec. Doc. 121 at 52). Magistrate Judge Smyser did not accept Hearth and Home’s argument that the indemnity provision could be construed as providing for indemnity of the Company if the Company and the Contractor were concurrently negligent. The Magistrate Judge concluded that the indemnity provision could not be construed to indemnify Hearth and Home for Hearth and Home’s own negligence. Regardless of this finding, Magistrate Judge Smyser still recommended that summary judgment be denied with respect to both motions because various issues of genuine material fact remained.

Like Magistrate Judge Smyser, we do not find compelling and do not accept Hearth and Home’s argument that the indemnity provision requires Haldeman to indemnify Hearth and Home for Hearth and Home’s own negligence. Our plain reading of the indemnity provision indicates that not only does it fail to contemplate indemnity for Hearth and Home’s sole negligence, but it also fails to contemplate indemnity for concurrent negligence of Hearth and Home and Haldeman. Furthermore, as noted by the Magistrate Judge, this holding does not necessarily mean that Haldeman will not be required to indemnify Hearth and Home, because at this point in time, the cause of the fire is unknown. Accordingly we shall overrule Hearth and Home’s objection on this point and adopt this portion of the report.

We likewise agree with Magistrate Judge Smyser’s recommendation to deny both motions for summary judgment. Not only is the cause of the fire an issue of genuine material fact, but also a genuine issue of fact remain as to whether the Insurance Requirements were a part of the Agreement signed by Haldeman. Accordingly, we shall adopt the Magistrate Judge’s recommendation and deny both Haldeman’s motion for summary judgment or, in the alternative, partial summary judgment against Hearth and Home and Hearth and Home’s motion for summary judgment against Haldeman.

D. Hearth and Home’s Motion for Summary Judgment against Penn National on Hearth and Home’s Counterclaims/Third-Party Claims against Penn National (doc. 73) and Penn National’s Motion for Summary Judgment against Hearth and Home on Hearth and Home’s Counterclaims/Third-Party Claims against Penn National (doc. 76)

Hearth and Home’s counterclaim (in the Penn National case) against Penn National and its cross-claim (in the Travelers’ case) against Penn National each contain the same three counts: Count I is a breach of contract claim, Count II is a claim for breach of the covenant of good faith and fair dealing and Count III requests a declaratory judgment declaring that Penn National is under a duty to defend Hearth and Home in the action filed by Penn National as subrogee of Stoltzfus in the action filed by Travelers Insurance as sub-rogee of Doneckers; that Penn National and Haldeman are required to indemnify Hearth and Home for any and all sums recovered in either the case brought by Penn National or the case brought by Travelers; and that Penn National acted in bad faith in denying Hearth and Home a coverage and a defense.

Magistrate Judge Smyser recommends that Hearth and Home’s motion for summary judgment be denied and that Penn National’s motion for summary judgment on Hearth and Home’s counterclaims/third-party claims be granted. In rendering this recommendation, Magistrate Judge Smyser first concluded that Hearth and Home was not a named additional insured under the Policy issued by Penn National to Haldeman. Hearth and Home objects to this conclusion.

We agree with Magistrate Judge Smyser’s conclusion that Hearth and Home was not an additional named insured. Hearth and Home argues that the Insurance Requirements, which it contends were a part of the Agreement between it and Halde-man, suggests that it is an additional named insured. As noted by the Magistrate Judge, a genuine issue of fact remains as to whether the Insurance Requirements were part of the Agreement, but even assuming arguendo that they were, that does not mean that Hearth and Home was actually a named additional insured on the Penn National Policy. Furthermore, we agree with the Magistrate Judge that the deposition testimony of Stephen Cover, Haldeman’s insurance agent, does not create a dispute as to whether or not Hearth and Home was a named additional insured on the policy. Cover testified that it was his normal practice to ask his customers what their insurance requirements were that would need to be fulfilled, but he did not recall whether he asked Haldeman if he needed anyone else to be listed as a additional insured. Again, this testimony cannot be fairly construed to mean that Hearth and Home was an additional named insured on the policy. For these and the other reasons cited by Magistrate Judge Smyser within his report (doc. 121 at 77-81), we find that Hearth and Home was not an additional named insured and overrule its objection on this point. Magistrate Judge Smyser also concluded, and we agree, that Hearth and Home was not entitled to damages for defense expenses under the policy as an indemnitee of Haldeman, again because it was not an additional named insured under the policy in question.

Hearth and Home also objects to Magistrate Judge Smyser’s conclusion that Hearth and Home is not entitled to coverage under the Automatic Additional Insureds Endorsement to the policy. The Magistrate Judge reasoned that Exclusion (b) to the Endorsement applied, therefore Hearth and Home was not entitled to coverage. Hearth and Home objects to this recommended finding.

Exclusion (b) of the Endorsement provides that “[t]he insurance provided to the additional insured does not apply to ... “property damage” ... [ojcurring after that portion of “your work” out of which the injury or damages arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as part of the same project.” (Rec. Doc. 121 at 89). Magistrate Judge Smyser reasoned that Halde-man’s work tvas put to its intended use when Hearth and Home turned the fireplace over to Stoltzfus and it was used by Stoltzfus. The Magistrate Judge rejected Hearth and Home’s argument that Exclusion (b) did not apply because the home in which the fireplace had been installed had not yet been sold and put to its intended use as a dwelling.

The essence of Hearth and Home’s objection to this portion of the Magistrate Judge’s report is that the language of Exclusion (b) is ambiguous and should therefore be construed against Penn National. Hearth and Home points to the opening paragraph of Exclusion (b), which defines who is an insured as:

Any person(s) or organization(s) (referred to below as “additional insured”) with whom you are required in a written contract or agreement to name as an additional insured but only for “your” acts or omissions arising from “your” ongoing operations at the location or project described in the contract or agreement.

Hearth and Home argues that the disjunctive nature of “location or project” renders the language, as it applies to these circumstances, ambiguous. We do not find this argument availing in the slightest.

We shall adopt Magistrate Judge Smyser’s reasoning in this regard as our own, concluding that Exclusion (b) does apply and that Penn National is not required to give Hearth and Home coverage or a defense under the Automatic Additional Insureds Endorsement. Hearth and Home’s objection is overruled.

In summary, we find no error in the Magistrate Judge’s reasoning or recommendations as it relates to these motions, and accordingly shall adopt his recommendation to deny Hearth and Home’s motion for summary judgment and grant Penn National’s motion for summary judgment on Hearth and Home’s counterclaims/third-party claims.

TV. CONCLUSION:

Our review of the Magistrate Judge’s detailed and exhaustive Report and Recommendation confirms his logic and reasoning. For the reasons cited herein, we shall adopt the Magistrate Judge’s Report and Recommendations as our own. All objections to the report shall be overruled.

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Magistrate Judge Smyser’s Report and Recommendation (doc. 121) is ADOPTED in its entirety.

2. Travelers’ motion for partial summary judgment against Hearth and Home (doc. 67) is DENIED.

8. Penn National’s motion for summary judgment against Hearth and Home on its claims as subrogee of Stoltzfus (doc. 62) is GRANTED in part and DENIED in part to the following extent:

a. Penn National’s motion for summary judgment is granted as to the merits of the breach of contract claim.

b. Penn National’s motion for summary judgment against Hearth and Home is denied in all other respects.

4. Haldeman’s motion for summary judgment or, in the alternative, partial summary judgment against Hearth and Home (doc. 64) is DENIED.

5. Hearth and Home’s motion for summary judgment against Haldeman (doc. 70) is DENIED.

6. Penn National’s motion for summary judgment against Hearth and Home on Hearth and Home’s counterclaims/third-party claims against Penn National (doc. 76) is GRANTED.

7. Hearth and Home’s motion for summary judgment against Penn National on Hearth and Home’s counterclaims/third-party claims against Penn National (doc. 73) is DENIED.

8. All objections to the Magistrate Judge’s Report and Recommendation are OVERRULED.

REPORT AND RECOMMENDATION

SMYSER, United States Magistrate Judge.

I. Background and Procedural History.

This consolidated case arises out of a fire that occurred in a model home.

A. Penn National Case.

Penn National Insurance, as subrogee of Elam G. Stoltzfus, Jr., Inc., filed a complaint in the Court of Common Pleas of Cumberland County, Pennsylvania. The complaint names as defendants HNI Corporation and Hearth & Home Technologies, Inc. Ud/b/a Fireside Hearth and Home.

Penn National alleges that Elam G. Stoltzfus, Jr., Inc. (Stoltzfus) was the owner of property known and numbered as 1735 Eliza Way in the Pinehurst Hills Development in Mechanicsburg, Pennsylvania. The structure on the property was a two-story, single-family home. Penn National alleges that construction of the home was completed on or about September 15, 2004 and that the home was not occupied or under a sales contract. The home was used as a model home. Stoltz-fus was the holder of a policy of insurance, issued by Penn National, which covered the property.

Penn National alleges that the defendants are in the business of manufacturing and installing indoor gas burning fireplaces and that Stoltzfus entered into a contract with the defendants for the delivery and installation of two gas fireplace systems.

On October 1, 2004 a fire occurred at the home which resulted in substantial destruction of the house and its contents. Penn National alleges that the cause of the fire was the improper installation and assembly of the chimney vent pipe for the fireplace located in the family room of the home.

Penn National’s complaint contains two counts. Count I is a negligence claim. Count II is a breach of contract claim.

On October 14, 2005, the defendants removed the case to this court.

On October 21, 2005, defendant HNI corporation filed an answer to the complaint.

Also on October 21, 2005, defendant Hearth and Home Technologies, Inc. (Hearth and Home) filed an answer to the complaint and a counterclaim against Penn National.

In its counterclaim against Penn National, Hearth and Home alleges that it subcontracted with Howard Haldeman, t/d/b/a Haldeman Chimney Sweep (Haldeman) to install the fireplaces at the Stoltzfus property. Hearth and Home alleges that, as part of an Independent Contractor Agreement, Haldeman was required to indemnify and defend it with respect to any claims arising from Haldeman’s work, including the work at the Stoltzfus property. Haldeman was the holder of a Commercial General Liability policy of insurance issued by Penn National, which was in effect at the time of the fire on October 1, 2004. Hearth and Home contends that as an indemnitee of Haldeman it is entitled to coverage and a defense by Penn National under the Haldeman policy. Penn National, however, has refused to defend or indemnify Hearth and Home.

Hearth and Home’s counterclaim against Penn National contains three counts. Count I is a breach of contract claim. Count II is a claim for breach of the covenant of good faith and fair dealing. Count III requests a declaratory judgment declaring: that Penn National is under a duty to defend Hearth and Home in the action filed by Penn National as subrogee of Stoltzfus and in the action filed by Travelers Insurance as subrogee of Doneckers, which had furnished the model home; that Penn National and Haldeman are required to indemnify Hearth and Home for any and all sums recovered in either the case brought by Penn National or the case brought by Travelers; and that Penn National acted in bad faith in denying Hearth and Home coverage and a defense.

Also on October 21, 2005, Hearth and Home filed a third-party complaint against Haldeman. The third-party complaint contains three counts. Count I is a claim for contribution. Count II is a claim for indemnification. Count III is a claim for breach of contract.

B. Travelers Case.

On April 10, 2006, Travelers Property Casualty Company of America (Travelers), as subrogee of Doneckers, Inc., filed a complaint against Hearth and Home and Haldeman.

Travelers alleges that Doneckers was in the furniture business and had furnished the model home. Travelers insured Do-neckers and paid Doneckers for damages sustained by Doneckers as a result of the fire.

Travelers’ complaint contains two counts. Count I is a negligence claim against Hearth and Home. Count II is a negligence claim against Haldeman.

On April 24, 2006, Haldeman filed an answer to Travelers’ complaint and a cross-claim against Hearth & Home for contribution and indemnification.

On May 3, 2006, Hearth and Home filed an answer to Travelers’ complaint and a cross-claim against Haldeman for contribution and indemnification.

On May 10, 2006, Hearth & Home filed a third-party complaint against Penn National. Hearth and Home’s third-party complaint contains the same three counts as are set forth in its cross-claim against Penn National in the case brought by Penn National.

C. Consolidation and Pending Motions.

By an Order dated August 16, 2006, the Travelers case was consolidated with the Penn National case. The consolidated case is on Judge Jones’ June 2007 trial list.

There are six motions for summary judgment pending: 1) Travelers’ motion (doc. 67) for partial summary judgment against Hearth and Home; 2) Penn National’s motion (doc. 62) for summary judgment against Hearth and Home on its claims as the subrogee of Stoltzfus; 3) Haldeman’s motion (doc. 64) for summary judgment or, in the alternative, partial summary judgment against Hearth and Home; 4) Hearth and Home’s motion (doc. 70) for summary judgment against Halde-man; 5) Penn National’s motion (doc. 76) for summary judgment against Hearth and Home on Hearth and Home’s counterclaims/third-party claims against Penn National; and 6) Hearth and Home’s motion (doc. 73) for summary judgment against Penn National on Hearth and Home’s counterclaims/ third-party claims against Penn National.

The motions for summary judgment have been briefed and will be addressed in this Report and Recommendation.

II. Summary Judgment Standard.

Summary judgment is appropriate if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R.Civ.P. 56(c). “The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact, though the non-moving party must make a showing sufficient to establish the existence of each element of his case on which he will bear the burden of proof at trial.” Huang v. BP Amoco Corp., 271 F.3d 560, 564 (3d Cir.2001); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“A factual dispute is material if it bears on an essential element of the plaintiffs claim, and is genuine if a reasonable jury could find in favor of the nonmoving party.” Natale v. Camden County Correctional Facility, 318 F.3d 575, 580 (3d Cir. 2003). In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir.1988). “Our function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Federal Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir.2003).

III. Travelers’ Motion for Partial Summary Judgment against Hearth and Home.

Travelers, as subrogee of Doneckers, is seeking summary judgment against Hearth and Home on Travelers’ negligence claim against Hearth and Home. Travelers is seeking judgment in the amount of $100,353.11, the amount that it paid to Doneckers based upon Doneckers’ loss of furniture in the fire.

It is undisputed that Stoltzfus owned the property and model home at issue, that Doneckers furnished the model home, and that on October 1, 2004, a fire occurred at the model home. See Travelers’ Statement of Material Facts at ¶¶ 1-3 & 8 and Defendant Hearth and Home Technologies Inc.’s Response to Plaintiff Travelers Property Casualty Company of America’s Concise Statement of Material Facts at ¶¶ 1-3 & 8.

Travelers contends that the fire occurred because the flue pipe assembly serving the fireplace in the family room was not installed correctly and utilized improper connection details.

Hearth and Home contends that it subcontracted with Haldeman to install the fireplace system including the vent pipe and that Haldeman was responsible for all work performed with respect to the fireplace unit and vent pipe. It is not disputed, however, that, in addition to Haldeman, Cort Miller, Ken Sharpe and Floyd Wertz, employees of Hearth and Home, were present when the fireplace was installed and assisted in the installation in varying degrees. Id. at ¶ 5.

It is also undisputed that Dennis Bru-baker, an employee of Hearth and Home, had traveled to the model home on two different occasions but was unable to start the fireplace. Id. at ¶ 6. It is further undisputed that Joe LaFrance, an employee of Hearth and Home, had traveled to the model home on September 16, 2004 and was able to start the fireplace. Id. at ¶ 7. LaFrance, however, could not keep the fireplace burning for any length of time. Doc. 80, Exhibit E — LaFrance Dep. at 79.

Travelers cites to the report of its expert and the report of Penn National’s expert in support of its contention that the fire occurred because the flue pipe assembly serving the fireplace was not installed correctly and utilized improper connection details. Both Travelers’ and Penn National’s experts opine that there was a gap between two pieces of pipe forming the flue which allowed hot gases to come into contact with combustible materials causing the fire. See Doc. 47 — Popolizio Report and Doc. kb — Kufta Report. Travelers’ expert also opines that a loose-fitting, cylindrical, metal sleeve, slip connector that was used around the flue would not have properly protected combustible materials during the use of the fireplace. See Doc. Ip7 — Popolizio Report. Travelers argues that Hearth and Home has not offered any evidence or an expert report to counter its assertion that the fireplace was negligently installed and that, therefore, Travelers should be granted summary judgment as against Hearth and Home.

Hearth and Home has not submitted an expert report regarding the cause of the fire. However, relying on the expert report submitted by Haldeman, Hearth and Home argues that there is a material factual dispute about the cause of the fire and that, therefore, Travelers is not entitled to summary judgment.

In contrast to Travelers’ expert, Halde-man’s expert concludes that the flue pipes were snapped together and that the joint inside the attic insulation shield was affixed prior to the fire and became separated as a result of the collapse of the building from the fire. See Doc. 50 — Carey Report. Haldeman’s expert contends that the roof flashing and vent cap for the fireplace were never installed by Hearth and Home and that without those components the fireplace was not ready to start-up and was not safe to operate. Id. He contends that despite the fact that the fireplace was not complete and was not ready to be started, Hearth and Home sent its employees (Brubaker and LaF-rance) to start the fireplace. Id. Halde-man’s expert concludes that the actions performed by Brubaker and LaFrance, in their attempts to start up the fireplace, and their failure to recognize that the installation was incomplete and unsafe, created an obvious fire hazard and that the work performed by LaFrance resulted in the activation of an unsafe fireplace that was an obvious fire hazard. Id. He concludes that the heat released from the incomplete system into the pipe chase would have been adequate to ignite the combustible material inside the pipe chase. Id. Haldeman’s expert also concludes that the failure of Hearth and Home’s office and management personnel to coordinate the proper completion of the installation of the fireplace system prior to start up of the fireplace was a significant factor contributing to the fire. Id.

Hearth and Home argues that Halde-man’s expert report creates a material question of fact as to the cause of the fire. Hearth and Home argues that if, as Halde-man’s expert opines, the fire was caused by the failure to vent the pipe through the top of the pipe chase, then it was Stoltzfus, as the general contractor responsible for supervising the construction and insuring the completion of all work, that is responsible. Haldeman’s expert, however, does not conclude that Stoltzfus was responsible for completing the roof flashing and vent cap. On the contrary, Haldeman’s expert contends that Hearth and Home was responsible for failing to complete the flashing and cap. Hearth and Home cites to the deposition testimony of David Al-bright, at the time a field superintendent for Stoltzfus, for the proposition that Stoltzfus as the general contractor was responsible for supervising the construction and insuring the completion of all work. However, the pages of Albright’s deposition cited by Hearth and Home do not support the proposition that Stoltzfus was responsible for ensuring completion of the fireplace system. Although based upon the expert reports there is a question of fact about the exact cause of the fire, all of the experts agree that the fire was caused by either the negligent installation or the negligent start up of the fireplace. Therefore, contrary to Hearth and Home’s contention, summary judgment in favor of Travelers is not necessarily precluded on the basis that there is a question of fact about the cause of the fire.

Although summary judgment in favor of Travelers is not necessarily precluded on the basis that there is a question of fact about the cause of the fire, we nevertheless conclude that summary judgment should not be granted to Travelers. Hearth and Home contends that Halde-man was an independent contractor, that it subcontracted with Haldeman to install the fireplace system including the vent pipe and that Haldeman was responsible for all work performed with respect to the fireplace unit and vent pipe. As discussed below in the context of Haldeman’s motion for summary judgment against Hearth and Home and in the context of Hearth and Home’s motion for summary judgment against Haldeman, there is a genuine factual dispute about whether Haldeman was an independent contractor or an employee of Hearth and Home. If Haldeman was an independent contractor and if his work was the cause of the fire, then Hearth and Home would not be liable to Travelers. See Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 785 (3d Cir.1978)(“Under Pennsylvania law, when an injury is done by an “independent contractor,” the person employing him is generally not responsible to the person injured.”). Accordingly, it will be recommended that Travelers’ motion for partial summary judgment against Hearth and Home be denied.

IV. Penn National’s Motion for Summary Judgment against Hearth and Home on its Claims as the Subrogee of Stoltzfus.

Penn National, as subrogee of Stoltzfus, is seeking summary judgment against Hearth and Home as to Penn National’s negligence and breach of contract claims against Hearth and Home. Penn National is seeking judgment in the amount of $559,373.70, the amount it paid to Stoltzfus pursuant to Stoltzfus’ policy of insurance with Penn National.

It is undisputed that Stoltzfus owned the property and model home at issue, that Stoltzfus was the holder of a policy of insurance issued by Penn National which covered the property, that on October 1, 2004, a fire occurred at the model home which severely damaged the model home and that Penn National paid Stoltzfus $559,373.70 pursuant to the insurance policy on the property. See Penn National’s Concise Statement of Material Facts at ¶¶ 1, 2, 7 & 8 and Defendant Hearth and Home Technologies Inc. ’s Response to Plaintiff Penn National Insurance’s Concise Statement of Material Facts at ¶¶ 1, 2, 7 & 8.

Penn National contends that the fire occurred because the employees and/or contractors of Hearth and Home improperly installed the fireplace in the first floor family room. Penn National cites to the report and supplemental report of its expert. In his original report, Penn National’s expert contends that there was a gap between two pieces of pipe forming the flue which allowed hot gases to come into contact with combustible materials causing the fire. See Doc. U. — Kufta Report. In his supplemental report, Penn National’s expert indicates that after his initial investigation it was found that the termination vent cap was never installed, that plywood probably covered the top of the chimney chase, and that the direct vent pipe never vented to the exterior. See Doc. 59— Kufta Supplemental Report. In his supplemental report, Penn National’s expert also indicates that he found that the screen for the fireplace was not attached and was still inside the fireplace box with the plastic covering still present and that the glowing embers for the fireplace were in a plastic bag on top of the firebox inside the unit. Id. Penn National’s expert states that these additional findings confirm his initial opinion that the negligent installation of the fireplace and chimney vent and poor workmanship on the part of the installer was the cause of the fire. Id.

Penn National argues that Hearth and Home failed to answer its requests for admissions and that Hearth and Home, therefore, has admitted the statements in the requests for admissions and all of the elements needed for it to establish its negligence and breach of contract claims. Hearth and Home, however, has filed its responses to Penn National’s requests for admissions. Hearth and Home objected to the requests on the basis that the requests were not timely. Pursuant to the Amended Case Management Order (doc. 42), all discovery was to be planned and commenced so as to be completed by November 1, 2006. Hearth and Home objected to Penn National’s requests for admissions on the basis that the requests were not propounded and served until October 27, 2006, just days before the discovery deadline, and that, therefore, the requests were issued and served in violation of the Amended Case Management Order. Since Hearth and Home has objected to Penn National’s requests for admissions, those requests are not deemed admitted. Accordingly, Penn National is not entitled to summary judgment on the basis that Hearth and Home failed to answer its requests for admissions.

Penn National also argues that Hearth and Home has not offered an expert report to counter Penn National’s assertion that improper installation of the fireplace was the cause of the fire and that, therefore, it should be granted summary judgment as to its claims against Hearth and Home.

As discussed elsewhere in this Report and Recommendation, there is a genuine factual dispute about whether Halde-man was an independent contractor or employee of Hearth and Home. If Halde-man was an independent contractor and if his work was the cause of the fire, then Hearth and Home would not be liable to Penn National on Penn National’s negligence claim.

Although Hearth and Home would not be liable to Penn National as to Penn National’s negligence claim if Haldeman was an independent contractor and if Haldeman’s work was the cause of the fire, whether or not Haldeman was an independent contractor or employee of Hearth and Home is not material as to Penn National’s breach of contract claim. Stoltzfus’ contract was with Hearth and Home, not Haldeman. Accordingly, Hearth and Home’s liability to Penn National, as sub-rogee of Stoltzfus, for breach of contract is not dependent on whether or not Halde-man was an independent contractor.

Under Pennsylvania law, the three elements of a cause of action for breach of contract are: 1) the existence of a contract; 2) a breach of duty imposed by the contract; and 3) resulting damages. See Williams v. Nationwide Mutual Ins. Co., 750 A.2d 881, 884 (Pa.Super.Ct.2000).

Hearth and Home contends that Penn National has failed to prove the essential terms of any contract between Hearth and Home and Stoltzfus. Hearth and Home states that there was no written contract between it and Stoltzfus and that Stoltzfus submitted only a purchase order to Hearth and Home for the fireplace.

Penn National has submitted a copy of the purchase order for the fireplace at issue. Doc. 1, Exhibit A

Although Hearth and Home argues that there was no written contract, Hearth and Home has not argued that the purchase order combined with its performance pursuant to the purchase order in providing the fireplace did not amount to a contract. Moreover, in its answer, Hearth and Home admits that Stoltzfus contracted with Hearth and Home for delivery and installation of two Heat-n-Glo gas fireplace systems, including ventilation/chimney systems. See Doc. 9 at ¶ 12. Accordingly, summary judgment on Penn National’s breach of contract claim should not be denied on the basis that there was no contract or that Penn National has failed to prove the essential terms of the contract.

Hearth and Home argues that Penn National has failed to establish a breach of any duty owed by Hearth and Home to Stoltzfus. Hearth and Home appears to be relying on its assertion that the expert reports submitted by the parties indicate that there is a factual dispute about the cause of the fire. As discussed above in connection with Traveler’s motion for summary judgment, Hearth and Home argues that Haldeman’s expert report creates a material question of fact as to the cause of the fire. Hearth and Home argues that if, as Haldeman’s expert opines, the fire was caused by the failure to vent the pipe through the top of the pipe chase, it was Stoltzfus, as the general contractor responsible for supervising the construction and insuring the completion of all work, that is responsible. Haldeman’s expert, however, does not conclude that Stoltzfus was responsible for completing the roof flashing and vent cap. On the contrary, Halde-man’s expert contends that Hearth and Home was responsible for failing to complete the flashing and cap. Hearth and Home cites to the deposition testimony of David Albright, at the time a field superintendent for Stoltzfus, for the proposition that Stoltzfus as the general contractor was responsible for supervising the construction and insuring the completion of all work. However, the pages of Albright’s deposition cited by Hearth and Home do not support the proposition that Stoltzfus was responsible for ensuring completion of the fireplace system. Hearth and Home has not provided any other evidence to support its assertion that Stoltzfus may have been responsible for the fire.

Even though the expert reports may create a question of fact about exactly how the fire started, those reports all agree that the fire was caused by either the negligent installation or the premature start up of the fireplace. Pursuant to the contract between Stoltzfus and Hearth and Home, Hearth and Home was responsible for the installation and for the start up of the fireplace. Accordingly, summary judgment in favor of Penn National on its breach of contract claim is not precluded on the basis that there is a question of fact about the exact cause of the fire.

Hearth and Home also contends that Penn National has failed to establish that any asserted damages actually resulted from a breach of the contract.

The expert reports indicate that the fire was caused by the negligent installation or start up of the fireplace. It is undisputed that the fire severely damaged the model home. Thus, to the extent that Hearth and Home is arguing that any breach of the contract on its part did not result in any damages, that argument is without merit. It appears, however, that Hearth and Home’s argument is really about the measure of damages. Hearth and Home does not dispute that Penn National paid Stoltzfus $559,373.70, but Hearth and Home disputes that Penn National has proven the amount of damages allegedly sustained by Stoltzfus or the reasonableness of any repair or replacement costs. See doc. 95 at ¶ 8. As we have not been presented with any evidence regarding the measure of damages sustained by Stoltz-fus, we conclude that summary judgment should not be granted to Penn National on its breach of contract claim against Hearth and Home.

Based on the foregoing, it will be recommended that Penn National’s motion for partial summary judgment against Hearth and Home be denied.

V. Haldeman’s Motion for Summary Judgment or, in the alternative, Partial Summary Judgment against Hearth and Home and Hearth and Home’s Motion for Summary Judgment against Haldeman.

Because the issues raised in Haldeman’s motion for summary judgment or, in the alternative, partial summary judgment against Hearth and Home and the issues raised in Hearth and Home’s motion for summary judgment against Haldeman are essentially the same, we address those motions together.

Hearth and Home’s third-party claims (in the Penn National case) against Halde-man are claims for contribution, indemnification and breach of contract, and its cross-claims (in the Traveler’s case) against Haldeman are for contribution and indemnification. Haldeman’s cross-claims (in the Traveler’s case) against Hearth and Home are for contribution and indemnification.

A. Undisputed Facts.

The following facts are not in dispute for purposes of the motions of Haldeman and Hearth and Home.

Hearth and Home is in the business inter alia of fireplace installation. Statement of Material Facts for Defendant Howard Haldeman’s Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment at ¶ 12 and Defendant Hearth and Home Technologies Inc.’s Response to Defendant Howard Haldeman’s Statement of Material Facts at ¶ 12.

In 1999, Howard Haldeman began working for Flameworx, a company that was owned by Fred Engle and Floyd “Dusty” Wertz. Id. at ¶¶ 18 1J. Haldeman’s job was to install fireplaces. Id. at ¶ 1J.

Flameworx was subsequently purchased by the Thulman Eastern Corporation (Thulman Eastern). Id. at ¶ 15. Thul-man Eastern was later re-named American Fireplace Company (American Fireplace). Id. at ¶ 16. Haldeman worked for Flame-worx, Thulman Eastern and American Fireplace installing fireplaces. Id. at ¶ 17.

By Purchase Agreement by and among American Fireplace Company and Hearth and Home, Inc., as sellers, and Hearth Technologies Inc., as buyer, dated January 28, 2000, Hearth Technologies Inc. purchased substantially all of the respective assets, properties, rights and interests of American Fireplace Company and Hearth & Home, Inc., including the right to use the name “American Fireplace Company.” Defendant, Cross-Claimant and Third-Party Plaintiff Hearth & Home Technologies Inc.’s Statement of Material Facts as to Which There is No Genuine Issue to be Tried Filed in Support of its Motion for Summary Judgment against Howard Haldeman d/b/a Haldeman Chimney Sweep at ¶ 1 and Defendant Howard Haldeman’s Statement of Material Facts Contra Defendant, Cross-Claimant and Third-Party Plaintiff Hearth & Home Technologies Inc.’s Statement of Material Facts Filed in Support of its Motion for Summary Judgment against Howard Haldeman d/b/a Haldeman Chimney Sweep. The names American Fireplace Company, Thulman Eastern Corporation, and all trade names of American Fireplace Company and/or Thulman Eastern Corporation were acquired by Hearth Technologies Inc. in January or February of 2000. Id. at ¶2. In October of 2002, Hearth Technologies Inc. changed its name to Hearth & Home Technologies Inc. Id. at ¶ 3.

On or about March 10, 2000, Howard Haldeman signed an “Independent Contractor Agreement.” Statement of Material Facts for Defendant Howard Halde-man’s Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment at ¶ 19 and Defendant Hearth and Home Technologies Inc. ’s Response to Defendant Howard Haldeman’s Statement of Material Facts at ¶ 19. The Agreement is between American Fireplace (referred to in the Agreement as the “Company”) and Haldeman’s Chimney Sweep (referred to in the Agreement as the “Contractor”). Doc. 81, Exhibit F. The Agreement was executed for the Company by Fred Engle. Statement of Material Facts for Defendant Howard Haldeman’s Motion for Summary Judgment, or in the Alternative, Partial Summary Judgment at ¶ 31 and Defendant Hearth and Home Technologies Inc. ’s Response to Defendant Howard Haldeman’s Statement of Material Facts at ¶ 34.. At the time of the execution of the Agreement, the name American Fireplace Company was a name that Hearth Technologies, Inc. owned and was permitted to use. Defendant, Cross-Claimant and Third-Party Plaintiff Hearth & Home Technologies Inc.’s Statement of Material Facts as to Which There is No Genuine Issue to be Tried Filed in Support of its Motion for Summary Judgment against Howard Haldeman d/b/a Halde-man Chimney Sweep at ¶ 6 and Defendant Howard Haldeman’s Statement of Material Facts Contra Defendant, Cross-Claimant and Third-Party Plaintiff Hearth & Home Technologies Inc. ’s Statement of Material Facts Filed in Support of its Motion for Summary Judgment against Howard Haldeman d/b/a Halde-man Chimney Sweep.

Paragraph 1 of the Agreement provides that the Company engages the Contractor as an independent contractor to perform the work set forth in the Agreement and that the Contractor accepts such engagement. Doc. 84, Exhibit F.

Paragraph 2 of the Agreement provides that the Contractor agrees to perform work, including, but not limited to, installation and other work related to fir