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Aquatherm LLC v. CentiMark Corp.

United States District Court, D. Utah

April 12, 2019

AQUATHERM, LLC; CORNERSTONE TECHNOLOGIES, LLC; STAG II LINDON, LLC; STAG INDUSTRIAL, INC.; and VIVINT, INC., Plaintiffs,
v.
CENTIMARK CORPORATION, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          DAVID NUFFER UNITED STATES DISTRICT JUDGE

         Defendant CentiMark Corporation (“CentiMark”) has filed a motion (“Motion”)[1] for summary judgment under Fed.R.Civ.P. 56(a) against Plaintiffs Aquatherm LLC, Cornerstone Technologies LLC, and Vivint Inc. (collectively, “Tenants”) and Plaintiffs Stag II Lindon LLC and Stag Industrial Inc. (collectively, “Stag”). Because there is no genuine dispute as to any material fact and CentiMark is entitled to judgment as a matter of law, the Motion is GRANTED.

         UNDISPUTED MATERIAL FACTS

         Based on the record and evidence presented, there is no genuine dispute as to any of the following material facts.

         Stag owned a commercial building complex in Lindon, Utah, portions of which-referred to as buildings 2 and 2.5-were leased to the Tenants.[2] On September 10, 2013, Stag entered an agreement (“Agreement”) with CentiMark, a general roofing contractor, to perform work on the roof of the complex, including buildings 2 and 2.5.[3] Among other things, the Agreement states:

§ 5.5 Unless specifically precluded by the Owner's property insurance policy, the Owner and Contractor waive all rights against (1) each other and any of their subcontractors, suppliers, agents and employees, each of the other; and (2) the Owners Consultant, Owners Consultant's consultants and any of their agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance or other insurance applicable to the Work.
. . . .
§ 6.2 THE WORK The term “Work ” means the construction and services required by the Contract Documents, and includes all other labor, materials, equipment and services provided, or to be provided, by the Contractor to fulfill the Contractor's obligations.
. . . .
§ 8.3 SUPERVISION AND CONSTRUCTION PROCEDURES
§ 8.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work.
. . . .
§ 8.5 WARRANTY The Contractor warrants to the Owner and Owners Consultant that: (1) materials and equipment furnished under the Contract will be new and of good quality unless otherwise required or permitted by the Contract Documents; (2) the Work will be free from defects not inherent in the quality required or permitted; and (3) the Work will conform to the requirements of the Contract Documents.
. . . .
§ 8.12 INDEMNIFICATION
To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Owners Consultant, Owners Consultant's consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent caused by the negligent acts or omissions of the Contractor, a subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder.
. . . .
§ 17.2. WARRANTY. Notwithstanding any provisions to the contrary, the only warranties and guarantees to be provided are CentiMark Corporation Non-Prorated Limited Roof Warranty, incorporated by this reference and attached hereto in sample form as part of Exhibit A. During the warranty time periods, set forth in CentiMark's Proposal attached hereto as Exhibit A, all issues relating to the warranty and guarantee of Contractor's Work shall be governed by the terms and conditions of said Warranty.[4]

         The warranty referenced in § 17.2 (“Warranty”) of the Agreement states:

I. WHAT THIS WARRANTY COVERS:
(a) CentiMark . . . warrants to the Purchaser O N LY that CentiMark will repair any leaks resulting from defects in the materials or workmanship in the roof services (services) performed by CentiMark, to the building noted above, for the period of time, noted above, from the Warranty Date. . . .
. . . .
I V. EXCLUSIVITY OF WARRANTY AND LIMITATION OF REMEDIES:
(a) CENTIMARK EXPRESSLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER IMPLIED WARRANTY. THIS EXPRESS LIMITED WA RRANTY CONTAINS THE SOLE AND EXCLUSIVE WARRANTY AND REMEDY OF PURCHASER AGAINST CENTIMARK. THERE IS NO EXPRESS WARRANTY OTHER THAN THAT STATED IN THIS WARRANTY.
(b) This Warranty does not cover, and in no case shall CentiMark be liable for, any special, incidental or consequential damages based on breach of warranty, breach of contract, negligence, strict liability, tort or other legal theory. . . . Incidental and consequential damages shall not be recoverable even if the remedies or actions provided herein are determined to have failed of their essential purposes.
. . . .
V. TIME LIMIT FOR BRINGING SUIT: ANY ACTION BY PURCHASER, TO ENFORCE ANY CLAIMS AGAINST CENTIMARK, MUST BE COMMENCED WITHIN ONE (1) YEAR FROM THE DATE THAT A DEFECT IN MATERIALS OR WORKMANSHIP, OR OTHER BREACH OR ANY OTHER CLAIM ...

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