What is a ‘qualified agency’?

Photo: izzetugutmen/iStock / Getty Images Plus/Getty Images

NFPA 54 Section 3.3.8.2 defines a “qualified agency” as: Any individual, firm, corporation or company that either in person or through a representative is engaged in and is responsible for (1) the installation, testing, replacement or design of gas piping or (2) the connection, installation, testing, repair or servicing of appliances or equipment; that is experienced in such work; that is familiar with all the precautions required; and that has complied with all of the requirements of the authority having jurisdiction (AHJ).

“Installation, designing, testing, purging and replacement of gas piping, appliances, or accessories and repair and servicing of equipment shall be performed only by a qualified agency.” See NFPA 54 Section 4.1.

Propane marketers

Propane marketers can be a qualified agency as defined in NFPA 54 for some or all of the listed duties under this section of the code. Some marketers may not provide work inside a home, business, manufacturing or agricultural facility. They may not be involved in installation, testing, repair or servicing of appliances. So, their role as a qualified agency would be limited to the activities they are qualified to perform.

For instance, we typically see code violations listed by a plaintiff or opposing party that the propane marketer is alleged to have missed. These violations do not always have to do with what caused an explosion. Courts differ as to whether non-causative code violations will be allowed as evidence in a jury trial. If they are allowed, our position is that it represents unfair prejudice and confuses the jury. The non-causative code violations had nothing to do with the explosion. Plaintiffs argue a variety of reasons to allow these violations into evidence. Courts often err on the side of allowing the evidence to avoid an appeal.

Consumers

Consumers on occasion work on their gas systems to include modification of gas lines, installation of gas appliances and equipment, and connection or disconnection of gas lines. The specific facts that demonstrate the knowledge of the general consumer will drive the analysis of whether they will be deemed a qualified agency. We have had mixed success with this argument at the trial court level and then on appeal. Our experience has taught us that developing a strong fact pattern that satisfies the elements of the qualified agency definition in Section 3.3.8.2 is the key to success.

Commercial operations

A sophisticated commercial operation with dozens of employees that installs and operates its gas appliances, installs gas lines and moves gas tanks may be a different fact pattern that upon closer scrutiny may qualify as a qualified agency under the code.

Authority having jurisdiction

An AHJ can be a state, county, city or municipality. The local AHJ may only permit licensed plumbers or gas fitters to install and maintain gas distribution systems and appliances. However, it is not uncommon for more rural and less bureaucratic governments to allow consumers and commercial entities to pull permits to install plumbing and to install appliances. In some cases, permits may not even be required by the local AHJ. Arguably, the lack of a requirement to pull a permit for this type of work is a grant of permission to do so by the AHJ.

Code violations and negligence

All states have adopted some version of NFPA 54. A violation of that code could be considered as negligence per se by a court of law. This means a jury would only have to determine if that negligence per se was a cause of the injuries or damage from an explosion. If the answer is yes, a judge or jury would attribute a portion of fault to that party.

A jury may still consider the fault of a party that is not deemed a qualified agency. The jury simply would not be able to consider if that fault was negligence per se. This would require the jury to answer two questions:

1. Was the party negligent?

2. Was that negligence a cause of the plaintiff’s injuries?

The question of negligence per se is a question of law. Parties can also stipulate negligence per se, which means all parties agree that one party, plaintiff or defendant, violated a relevant law and is negligent per se. Telling the jury that the judge had determined a party was negligent per se is valuable. If both parties stipulate, it can be seen that the party that is tagged with negligence per se is owning up to its fault. If the party does not own up to its negligence, that will be stressed to the jury.

John V. McCoy is with McCoy, Leavitt, Laskey LLC. His firm represents industry members nationally. He can be reached at jmccoy@MLLlaw.com or at 262-522-7007.