NEW CINGULAR WIRELESS PCS, LLC, v. MAGNOLIA PLAZA, 627 (U.S. District Court, Central District of California, January 10, 2011).
On November 26, 2006, a two-alarm fire broke out on the roof of a strip mall in Long Beach, California. The fire apparently originated inside one of two large wooden cupolas on the mall's roof, where a cellular communications site was installed. The laundromat below the cupola sustained significant fire damage for which it was insured. The insurer paid the laundromat’s claim and later filed suit against the wireless company. The wireless company settled with the insurer and filed a third-party claim against the building owner seeking to recover sums paid in settlement based on an alleged breach of lease, negligence and indemnification. The building owner counterclaimed for the damages it incurred in the form of lost rent and the costs of a security guard employed at the strip mall while the repairs were being made to the fire-damaged portions of the structure.
In its effort to prove this claim, the building owner presented the testimony of an expert in microwave electronics that the cellular communications equipment — the tower-mounted amplifiers (TMAs) in particular— could not be eliminated as the source of the fire. But, the Court indicated that this evidence was a far cry from proving that the the TMAs in fact caused the fire. Moreover, every other witness with some knowledge of the operation of cellular communications equipment testified that they have never seen or heard of a fire caused by cellular communications equipment.
Ultimately, the Court held that the cause of the fire remained a mystery. Each side offered evidence regarding its theory of how the fire started and argued why, on that basis, their adversary was responsible for the resulting damage. Because neither party was able to prove its theory by a preponderance of the evidence, neither party was entitled to any recovery in the case.
For a copy of this decision, contact Anthony Dorland at dorlanda@moss-barnett.com.