Landaverde v. Navarro Gomez v. Parrish Servs.

Panel: Graeff, Leahy, James P. Salmon (Senior Judge, Specially Assigned), JJ. Salmon, J. ^{229 852} On the evening of April 23-24, 2012, five people were residing at a house located at 722 Shelby Drive, Oxon Hill, Maryland. All five died that evening of carbon monoxide poisoning. The cause of that poisoning was that some unknown person or persons had negligently connected the home's bathroom ventilation fan to the flue that was supposed to carry carbon monoxide gas from the boiler and water heater up through the ceiling and through the roof.

On the evening in question, someone evidently left the bathroom fan on, and later that evening, due to the improper fan connection, carbon monoxide gas backed up and entered the rooms occupied by the victims. Those victims were: Sonia Chavez, Oscar Chavez, Nora Leiva, Francisco Gomez, and Nelson Landaverde. The decedents' spouses and children filed in the Circuit Court for Prince George's County complaints for negligence and wrongful death against Homesure Services, Inc. ("Homesure"), Safeguard Properties, LLC ("Safeguard"), Caviness Mechanical Services ("Caviness"), and Parrish Services Inc. ("Parrish"). In addition, the spouses and children of Landaverde and Gomez filed actions against Santiago Navarro, one of the owners of the house where the carbon monoxide poisoning occurred.

Subsequently, the claims against Homesure and Safeguard were dismissed without prejudice. Navarro, Caviness, and Parrish filed motions for summary judgment. After a hearing on October 3, 2016, the circuit court denied Navarro's motion for summary judgment and granted summary judgment in favor of Caviness and Parrish. Subsequently, pursuant to a voluntary stipulation, the actions against Navarro were dismissed without prejudice.

In these ²³⁰ consolidated cases, the spouses and children of the victims noted timely appeals. QUESTIONS PRESENTED Appellants present two questions for our consideration which we have rephrased, slightly, and reordered as follows: I. Did the circuit court err in finding that a home warranty contract between a home owner and a warranty company absolved Caviness and Parrish from any tort duty to address rust and holes on the flue pipes of a heating and hot water system at 722 Shelby Drive?

II

Did the circuit court err in finding that Caviness and Parrish had no tort duty, as a matter of law, to address rust and holes on the flue pipes of the heating and hot water systems they worked on at 722 Shelby Drive? For the reasons set forth below, we answer both questions in the affirmative and reverse the judgments entered in favor of Caviness and Parrish. FACTUAL BACKGROUND In February 2010, Sonia Chavez and Santiago Navarro purchased a single family home located at 722 Shelby Drive in Oxon Hill. 1 Navarro never lived at 722 Shelby Drive. There was evidence that he ⁸⁵³ was a friend of Sonia and Oscar Chavez and had agreed to purchase the home with Mrs. Chavez because Mr. Chavez had a bad credit history.

Starting in February 2010, Mrs. Chavez and her husband lived in the home and rented rooms to Nelson Landaverde and ²³¹ Francisco Gomez. At the time of the incident giving rise to this case, Mrs. Chavez's sister, Nora Leiva, was also staying in the home. The decedents' spouses and children filed identical suits against Caviness and Parrish alleging that fatal amounts of carbon monoxide entered the home as the result of an improperly installed bathroom fan that had been spliced into the flue used to vent exhaust from the boiler and hot water heater. The date the fan was installed is unknown. 2 At the time Mrs. Chavez and Mr. Navarro purchased the home, they entered into a home warranty agreement with Homesure that covered repairs to a number of appliances in the home, including the heating system and hot water heater.

The warranty agreement provided that Homesure would "pay the covered costs to repair or replace the items listed as covered ... if any such items become inoperable during the term of this Agreement due to mechanical failure caused by routine wear and tear, subject to the terms and conditions of this Agreement." The warranty agreement covered the mechanical components of one primary central heating system, but did not cover "[c]himneys, flues, and liners[.]" The agreement also covered the mechanical parts and components of one water heater, but did not include "flues; vent pipes/lines[.]" If a claim was covered, Homesure agreed to provide Mrs. Chavez "with a referral to an independent contractor," whom Homesure had the "sole authority" to select. The relationship between Caviness and Parrish and the warranty company, Homesure, was governed by a service provider's agreement pursuant to which Caviness and Parrish agreed to collect deductibles and excess fees from customers and to bill Homesure directly at pre-negotiated discounted ²³² rates. 3 All parties agreed that Caviness and Parrish were independent contractors. On March 1, 2010, Mrs. Chavez contacted Homesure and reported that the heating system was not working properly. Homesure arranged for Caviness to respond to Mrs. Chavez's complaint.

On March 2, 2010, Caviness employee, Darren Baine, went to the home, determined that there was a defective pilot control module on the boiler, and the next day, replaced it. A few months later, on June 3, 2010, Mrs. Chavez contacted Homesure to report that the hot water heater was not working properly. On this occasion, Homesure arranged for Parrish to respond to Mrs. Chavez's complaint. On June 4, 2010, Parrish employee, Robert Rhoades, went to the home, determined that the pilot light would not stay ⁸⁵⁴ lit, and ordered a replacement gas control valve.

He returned to the home on June 10, 2010 and installed the new valve. The motions court was provided with a picture, taken by a home inspector in 2008, that appellants claim shows rust on the flue pipe from which the heater and boiler vented. The appellants claimed that the service technicians from Caviness and Parrish should have discovered that there were holes and rust on the flue through which the exhaust from both the boiler and hot water heater vented, warned the occupants of the home that carbon monoxide poisoning could occur if the flue was structurally compromised as a result of the rust and holes, and fixed the damaged flue pipe. They also claimed that the service technicians from Caviness and Parrish should have investigated the cause of the rust-damaged flue pipe or informed the occupants of the home that the boiler and hot water heater were not safe to use until such investigation was performed.

Further, they asserted that a competent ²³³ investigation into the cause of the rust-damaged flue pipe would have revealed the life-threatening connection between the bathroom ventilation fan exhaust and the flue for the boiler and hot water heater. 4 Darren Baine, the service technician from Caviness who performed service on the heating system at 722 Shelby Drive, in the early part of March 2010, died in September 2011. The only document pertaining to the work he performed was an invoice. Caviness's corporate representative and owner, David Caviness, testified in a deposition that all of his company's work in 2010 was obtained through home warranty companies including, but not limited to, Homesure. He explained that typically there was an established price limit for repairs and Caviness could perform any work with a cost under that limit while more expensive work required pre-authorization from the warranty company.

Mr. Caviness stated that his company's employees were never instructed not to look for problems with flue pipes even though flue pipes were never covered by any of the home warranty companies for whom his company worked. On that point, he gave the following deposition testimony: [Mr. Caviness]: That's how you make your money. Go in and look for a problem, especially a problem that's not covered, that's when you make your money with the warranty company. Try to find as many problems as you can that's lack of maintenance, something that's not covered under the contract.

That's the only way you make money with the warranty companies. Now, it's between you and your - your - the homeowner. ²³⁴ [Plaintiffs' Counsel]: If I understand correctly, the only - you're saying the only way you make money is, essentially, by billing somebody, other than the home warranty company? [Mr. Caviness]: Right. [Plaintiffs' Counsel]: Okay. [Mr. Caviness]: Basically, the home warranty companies, they give them out when they - people buy the house and you're hoping to God that they break ⁸⁵⁵ away from the warranty company and they - they use your services afterwards, you know. But some people are lifetime warranty people and, you know, when you go into jobs with the Homesure, they didn't cover maintenance issues, improper installations. They didn't cover none of that, flue pipes.

And then, if you go in and you see a problem, bam, now you got - hey, get right on the phone. Look, you need this, this, this. And then the warranty company will say, well, this is not covered, we'll give the homeowner a call, let them know this is - well, how much is your COD estimate. Give them a price, they call.

Then after they take care of that, you call the warranty company - or the customer and say, hey, look, we can come out and do the job, so.... Mr. Caviness acknowledged that neither his company nor his employees were employees of Homesure and that the warranty company did not give directions or guidance about specific jobs or control the manner in which the Caviness service technicians performed their work. Mr. Caviness never discussed with the late Mr. Baine the service that was provided at 722 Shelby Drive. Caviness testified that his company did not provide any special training for its service technicians, but he acknowledged that any required flue work below the ceiling level would be something that Caviness employees would be expected to address.

Mr. Caviness was not familiar with any industry standard that would require him to inspect an entire flue above the ceiling and denied that Caviness was required to ²³⁵ inspect above the ceiling at 722 Shelby Drive. Mr. Caviness admitted that, if a flue pipe leading from a furnace had rust or corrosion on it, a Caviness employee would be expected to shut down the furnace. The following exchange between plaintiffs' counsel and Mr. Caviness is relevant: Q. Did - did Caviness, at the time in 2010, have any kind of checklist or procedures that its technicians were supposed to follow when figuring out what the problem was - was with a furnace like this one? [Mr. Caviness]: No. Not with a service tech that's well trained. You know what your procedures are.

You know what your obligations are. Q. I guess I understand that you're - you're basically relying on the tech to exercise his kind of - A. Yeah. Q. - professional judgment. Caviness wasn't providing any special training policies, procedures, regarding what its employees should do?

A. No. Every tech - every tech - every, you know, when I've worked for people, I've never had any, you know, you go in and you know what you're doing, you're licensed and you know what you're checking. You know the piece of equipment you're working on and, you know, you're checking your safeties, your flues, it's typical with anybody in this trade. Q. If the flues connected to the furnace showed signs of rust or corrosion, what would a Caviness employee have been expected to do? * * * A. Hypothetical, refer them to a chimney company to have their chimney checked. Q. Okay.

And why would they do that? [Defense Counsel]: Objection. [Mr. Caviness]: What? Q. Why would they do that? ^{856 236} A. Just, I mean, if you get water coming down your chimney because your caps come off, you get a lot of acetic acid because the flue product's mixing with - with your - with water, very acidic. It will eat your, you know, just eat the pipes up. * * * Q. My question was in 2010, if a Caviness employee saw rust or corrosion on the flue pipe leading from the furnace, what would they be expected to do? [Defense Counsel]: Objection. A. We'd shut the furnace down.

Q. Why would you do that? [Defense Counsel]: Objection. A. It all depends on - you know, it all depends on the integrity of the pipe. I mean, if you got rust on the outside of the pipe, that don't necessarily mean that the integrity of the pipe's bad or anything. You know, you get water line and water drips.

You get condensation in a basement. I mean, its - its - its integrity of the pipe. If the pipe's falling apart, you shut it down. Robert B. Rhoades, III, the service technician who responded to 722 Shelby Drive on behalf of Parrish, acknowledged that there was no difference in the way he would perform his job if he was working on a home warranty plumbing job or a job for a customer who had called Parrish directly for service.

He also acknowledged that as a plumber, he received training about the potential danger to human health that can result from water heaters creating carbon monoxide. Although he had no recollection of his 2010 visit to 722 Shelby Drive, Mr. Rhoades believed, based on his standard practices, that he would have looked at the flue as part of his service of the water heater. At his deposition Mr. Rhoades testified: [Plaintiff's Counsel]: I want to ask you a couple more questions about the - what we were just really talking about ... the things you were trained in and kind of your standard practices that you - you would follow in your job. Let me ask you some of these and you tell me if you agree with ²³⁷ me or not.

If you were to find out that a bathroom fan vent was connected to the flue from a water heater or water boiler, would you understand that that could block the exhaust of carbon monoxide from a house? [Mr. Rhoades]: Yes. Q. Okay. Would you agree with me that a corroded or rusted flue attached to the boiler would be a sign of excessive moisture in the flue? A. Yes.

Q. Okay. Would a possible cause of that kind of excessive moisture be a - let's say, an improperly-connected bathroom fan vent? [Defense Counsel]: Objection. [Defense Counsel]: Objection to the form. [Mr. Rhoades]: Yeah, I guess so. [Plaintiff's Counsel]: Okay. Have you ever heard of the group called the Air Conditioning Contractors of America? [Mr. Rhoades]: No. Q. Okay. Would you agree with me that it is a standard practice among plumbers, like yourself, that when you are called to service a water heater, you should inspect the flue?

A. Do a check-over, yes. Q. What do you mean by the check-over? A. It's part of procedure to just check over the - Q. Oh, I see. A. - pipe, you know.

Q. Check over the flue? ⁸⁵⁷ A. Make sure it's all intact and not full of holes and stuff. Q. Okay. Would you agree with me that if the flue was - had signs of corrosion or rust, that that would be a problem that you would try to address? A. Correct.

Q. And can you just tell me why is that? Why is it that you would try to correct a corroded or rusted flue? ²³⁸ A. Well, it - if it's rusted up and got holes in it, then, obviously, it would be a problem. * * * Q. Why would it be a problem? A. Carbon monoxide. Q. Okay.

Now, when you worked at Parrish, if you saw a rusted or corroded flue, is that something you would put down in your - in your handwritten notes to send back to Parrish? [Defense Counsel]: Objection to the form. Go ahead. A. Yes. Q. And if you observed the corrosion or rust on the flue, is that something you would notify the homeowner about?

A. Correct. Q. And why would you do that? A. Because that would be something [sic] need to be fixed. * * * Q. Would you also - if you saw a rusted or corroded flue coming from the water heater, would you attempt to find out what the cause of that was? A. Yes.

Mr. Rhoades went on to testify that if he had seen rust or corrosion on the flue pipe in 2010, he would have "recommend[ed] replacing it." Alan Givens, the Chief Executive Officer and corporate representative of Parrish gave deposition testimony somewhat similar to that of Mr. Rhoades: [Plaintiff's Counsel]: And as part of this [ride-along] training, you're - Parrish's employees would be told to look for other problems to potentially fix? [Mr. Givens]: Correct. Q. And that would include rusted or corroded flue pipes? A. Right. ²³⁹ Q. Okay. Touching on something I talked about earlier, was there any kind of verbal instruction [as to work] that that was not to be done on home warranty jobs?

A. No. Q. Okay. And was it the - in terms of doing this more work and looking - identifying problems, was it Parrish's position when doing these - this ride-along training, that rust and corrosion on these flue pipes was a problem that should be fixed? [Defense Counsel]: Objection to the form of the question. A. That would depend on the amount of rust and corrosion that you would see. [Plaintiff's Counsel]: Okay. So there was a - essentially, a level of rust or corrosion that was tolerable that did not need to be fixed or addressed - [Defense Counsel]: Objection to the form of the question.

A. Well, yeah, I mean, you could - you could see water stains coming down a piece of flue pipe and that doesn't mean that there's an ongoing problem. That could mean a lot of different things. Q. Okay. So there's some - some tipping point at which the corrosion or rust on a flue pipe becomes an issue that needs to be addressed?

A. Yes. ⁸⁵⁸ Q. Okay. Is there any way for you to kind of articulate what that level would be? A. Well, any clear holes or, you know, if the - if the flue pipe appears to be so rusted that, you know, failure is imminent. You know, a lot of corrosion buildup, you know, because you can - you can get - you can have a thin buildup and you can have a very thick buildup of - of combustion gases that have condensed and started etching the flue pipe.

Q. If there was, let's say - let's say any level of corrosion spotted by a Parrish employee back in 2010, would that be something that the Parrish employee should document? A. No. ²⁴⁰ [Defense Counsel]: Objection. [Plaintiff's Counsel]: So would it only have been something that a Parrish employee should have documented if it reached this kind of threshold you were just telling me about? A. If it was something they were concerned about. Q. Okay.

So that was kind of left to the plumber's discretion, you know, if the problem is concerning, document it? A. Yes. The plaintiffs' expert, Marlon Pujol, testified in his deposition that if an inspection revealed any rust inside the pipe, he would "replace the entire flue pipe." Similarly, Parrish's expert witness, Kenneth McLauchlan, testified that a heating, ventilation, and air conditioning ("HVAC") professional should, among other things, examine the visible portions of the venting system, determine if there is rust, and, if so, determine if the venting system is compromised and needs to be replaced. Caviness and Parrish filed motions for summary judgment on the ground that they did not have any duty in tort to the decedents.

Both defendants argued that they did not enter a contract to inspect the flue, that they did not have a duty to inspect the flue or bathroom ventilation system, that they performed the work they were retained to perform, that flues were specifically excluded from the home warranty agreement, that their repair contract was not an insurance policy or guarantee of work performed by others, and that they did not breach their contracts with Homesure. After a hearing, the circuit court granted summary judgment in favor of Caviness and Parrish, finding that those defendants did not owe a duty to the decedents "because ... there was no breach of contract [in relation] to the actions that they took in this case, and then there's no independent basis for any negligence." The court determined that the home warranty agreement excluded the work that the plaintiffs alleged the employees of Caviness and Parrish should have looked into and completed. The court clarified that determination, stating: ²⁴¹ The Court feels that the contract that existed excluding those areas that it was not supposed to look at when it went out to service the appropriate water heater and heating unit - again, they did the work, there's no breach to that particular work that they did, and I don't think that expands - given the contract, that created a duty for them. Had there been some other evidence in that case, possibly.

But that evidence is not in this case. As to Mr. Navarro, the court denied his motion for summary judgment on the ground that a genuine issue of material fact existed with respect to his status and duty as a landlord. As we have already noted, the actions against Mr. Navarro subsequently were dismissed without prejudice. ⁸⁵⁹ STANDARD OF REVIEW A circuit court may grant a motion for summary judgment "if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Md. Rule 2-501(f). We review a circuit court's decision to grant summary judgment de novo and without deference, by independently examining the record to determine whether the parties generated a genuine dispute of material fact and, if not, whether the moving party was entitled to judgment as a matter of law.

Rowhouses , Inc. v. Smith , 446 Md. 611 , 630-31, 133 A.3d 1054 (2016) ; Sierra Club v. Dominion Cove Point LNG , L.P. , 216 Md. App. 322 , 330, 86 A.3d 82 (2014). We consider the record " 'in the light most favorable to the non-moving party,' " drawing any reasonable inferences against the moving party. Rowhouses , Inc. , 446 Md. at 631 , 133 A.3d 1054 (quoting Hamilton v. Kirson , 439 Md. 501 , 522, 96 A.3d 714 (2014) ). Moreover, when reviewing the issue of whether the court erred in granting summary judgment, we consider only the grounds for granting summary judgment relied upon by the circuit court.

Gilroy v. SVF Riva Annapolis , 234 Md. App. 104 , 125, 168 A.3d 1130 (2017). ²⁴² DISCUSSION Appellants contend that the circuit court erred in finding that the home warranty contract absolved Caviness and Parrish from any tort duty to address rust and holes in or on the flue pipes. They also argue that the circuit court erred in finding that Caviness and Parrish had no tort duty, as a matter of law, to address rust or holes in or on the flue pipes. We agree with appellants as to both contentions. The provisions of the warranty contract between Homesure and Mrs. Chavez, and the service provider agreements between Homesure and Caviness and Parrish had no bearing on the duty that Caviness and Parrish, both independent contractors, owed to the decedents, and did not preclude the existence of an independent tort duty.

Taking the evidence presented to the motions court in the light most favorable to appellants, there was a foreseeable risk of personal injury or death if a dangerous condition was ignored; and under such circumstances the service technicians from Caviness and Parrish had a duty to exercise reasonable care in performing their work, which included a duty to inspect the visible portions of the flue for signs of rust and corrosion and, if significant rust or corrosion was found, to either warn the homeowner or take other reasonable steps to protect the occupants of the home from carbon monoxide escaping from the flue. I. First Question Presented Mrs. Chavez, Caviness, and Parrish initially came into contact with each other as a result of their respective home warranty and service providers agreements with Homesure. The circuit court determined that those agreements excluded "the work that Plaintiff[s] alleges that the Defendant[s] should have looked at and completed." The court explained "that the contract that existed exclude[ed] those areas that [Caviness and Parrish were] not supposed to look at when it went out to service the appropriate water heater and heating unit...." Thus, the court concluded that the agreements absolved Caviness and Parrish from any tort duty to address rust or holes on or in the flue pipes. ²⁴³ Appellants contend that nothing in the home warranty agreement or the service provider's agreement limited or excluded the work that Caviness and Parrish, both independent contractors, could do at 722 Shelby Drive. They maintain that the ⁸⁶⁰ home warranty agreement merely clarified those services that would be paid for by Homesure, and those that would not be paid for, but in no way limited the scope of work or professional duties of Caviness and Parrish.

As we have long recognized, the interpretation of a contract is a question of law that we review de novo . Spacesaver Systems , Inc. v. Adam , 440 Md. 1 , 7-8, 98 A.3d 264 (2014) (and cases cited therein); Grimes v. Gouldmann , 232 Md. App. 230 , 235, 157 A.3d 331 (2017). Our foremost goal in interpreting a contract is to ascertain and effectuate the intention of the contracting parties. Hartford Accident & Indem.

Co. v. Scarlett Harbor Assocs. Ltd. P'ship , 109 Md. App. 217 , 290-91, 674 A.2d 106 (1996), aff'd , 346 Md. 122 , 695 A.2d 153 (1997). "The primary source for determining the intention of the parties is the language of the contract itself." Id. at 291, 674 A.2d 106 (citations omitted). We "give the words of the contract their ordinary and accepted meaning, looking to the intention of the parties from the instrument as a whole." Finci v. American Cas.

Co. , 323 Md. 358 , 369-70, 593 A.2d 1069 (1991) (citation omitted). If the contract language is unambiguous and capable of only one meaning, we will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used. 100 Inv. Ltd. P'ship v. Columbia Town Ctr. Title Co. , 430 Md. 197 , 234, 60 A.3d 1 (2013).

We employ in Maryland an "objective approach" to contract interpretation, meaning that unless a contract's language is ambiguous, we give effect to that language as written without concern for the subjective intent of the parties at the time of formation. This undertaking requires us to restrict our inquiry to the four corners of the agreement, and ascribe to the contract's language its customary, ordinary, and accepted meaning. ²⁴⁴ Rather than acquiescing to the parties' subjective intent, we consider the contract from the perspective of a reasonable person standing in the parties' shoes at the time of the contract's formation. Thus, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. The language of a contract is only ambiguous if, when viewed from this reasonable person perspective, that language is susceptible to more than one meaning.

Ocean Petroleum Co. , Inc. v. Yanek , 416 Md. 74 , 86-87, 5 A.3d 683 (2010) (quotations and citations omitted). The service provider's agreement that both Caviness and Parrish entered into with Homesure established a relationship whereby Homesure would select a service provider to perform service for customers covered by a Homesure home warranty agreement. The service provider would contact the home warranty customer, perform repair or replacement work as authorized by Homesure, and bill Homesure directly at a "pre-negotiated discounted rate." Homesure agreed to "pay all or a portion of the claim within the contract limits." The parties acknowledged that the home warranty agreements "may have service limits, caps, and/or deductibles," that Homesure would only pay service providers for "pre-approved amounts," and that service providers would "collect deductibles and excess fees from the customer." If work was performed without authorization from Homesure, the service provider was advised "to obtain written approval from the homeowner" and an agreement to pay for all charges not paid by Homesure. The service providers ⁸⁶¹ agreed to give customers "any reduction in fees that [they] advertise[d] to the general public[.]" In addition, service providers were required to "warrant all repair workmanship for at least 90 days" and "[a]ll unit replacement and workmanship ... for at least one year." Specifically with regard to claims that fell outside the coverage provided under the home warranty agreement, service providers were required to extend the pricing and guarantees it had negotiated with Homesure to the customers and to maintain "product ²⁴⁵ value." The service provider agreement stated that "[u]pselling is permitted (replace vs. repair) but not with a negative point of view." The service providers agreed to "comply with all applicable laws, ordinances, and regulations of any Federal, State, County, Municipal or other lawful authorities," to hold and maintain valid licenses that may be required to engage in order to provide the services performed, and to maintain at all times insurance coverage as specified in the agreement.

The agreement written by Homesure stated: Service Provider shall perform its obligations under this Agreement as an independent contractor, and this Agreement shall not constitute, create, or in any way be interpreted as a joint venture, partnership or business organization of any kind. Neither party to this Agreement, nor their respective employees, officers, director, agents, or owners shall be considered employees or agents of the other party; neither party shall have the power to direct and control the day-to-day activities of the other party, and neither party shall have the authority to bind the other party to any agreement whatsoever. The home warranty agreement between Homesure and Mrs. Chavez was "intended to provide protection against the cost of repairing certain types of mechanical failures of specific items," including the water heater and the heating system. It obligated Homesure to "pay the covered costs to repair or replace the items listed as covered ... if any such items become inoperable during the term of this Agreement due to mechanical failure caused by routine wear and tear, subject to the terms and conditions of this Agreement." As mentioned earlier, the warranty agreement covered the mechanical components of one primary central heating system and the mechanical parts and components of one water heater, but did not cover, among other things, flues.

Homesure agreed to provide Mrs. Chavez "with a referral to an independent contractor." The home warranty agreement included the following exclusions and limitations: ²⁴⁶ 3. This Agreement covers only repairs and/or replacements due to mechanical failure attributable to ordinary wear and tear. Accordingly, the Agreement does not cover failures, which may result from other causes, such as without limitation: improper installation; lightning strikes;.... * * * 11. This Agreement does not cover ductwork with the sole exception of ductwork that is exposed and readily accessible to service a mechanical failure of a covered air conditioning or heating system or item.

This Agreement does not cover: asbestos insulated ductwork; concrete encased or inaccessible ductwork; crushed/collapsed ductwork; ductwork damaged by moisture, water, pests and/or animals; insulation; registers, grills and dampers; underground ductwork. Inaccessible ductwork refers to ductwork that is used in central heating and/or air conditioning systems that is ⁸⁶² not exposed and cannot readily be accessed for replacement or repair due to design and installation obstacles such as, but not limited to, permanent partitions, chimneys, etc. and ductwork embedded in floors, walls or ceilings. * * * 16. This Agreement does not cover any mechanical failure when the covered item or system has been repaired, modified, disabled or adjusted in any way which prevents us or our independent contractor(s) from inspecting, diagnosing and/or repairing the mechanical failure. 17. This Agreement does not cover items that have had improper alterations, installations or repairs or improperly modify any system, appliance or component covered by this Agreement, or damage it in the course of remodeling or repair, we will no longer be obligated to cover such item(s). 18.

This Agreement does not cover performance or routine maintenance. You are responsible for performing all routine maintenance and cleaning for all covered items and systems as specified and recommended by the manufacturer. You are also responsible for providing all routine maintenance for all areas in a covered property around covered items ²⁴⁷ and/or systems to ensure that these items and/or systems are able to function properly as specified by the manufacturer. 19. We are not liable for any damages that result from an independent contractor's service, delay in providing service or failure to provide service.

We are not liable for any incidental, consequential, special, and/or punitive damages, whether caused by negligence or any other cause, and you agree to waive any and all claims for such damages, arising from, resulting from or related to any independent contractor's service, delay in providing service, or failure to provide service, including, but not limited to, damages, resulting from delays in securing parts and/or labor, the failure of any equipment used by an independent contractor, labor difficulties, and/or the negligent, tortious and/or unlawful acts or omissions of any independent contractor. Contrary to the circuit court's finding, there is nothing in either the service provider's agreement or the home warranty agreement that limited or controlled in any way the work that Caviness and Parrish could perform. Certainly, there was no provision in either agreement that set forth "areas" that Caviness and Parrish were "not supposed to look at when [they] went out to service" a Homesure customer. The home warranty agreement merely specified what Homesure would and would not pay for.

Caviness and Parrish were independent contractors and the agreements at issue specifically contemplated that the