United States District Court, D. Utah
AQUATHERM, LLC; CORNERSTONE TECHNOLOGIES, LLC; STAG II LINDON, LLC; STAG INDUSTRIAL, INC.; and VIVINT, INC., Plaintiffs,
CENTIMARK CORPORATION, Defendant.
MEMORANDUM DECISION AND ORDER GRANTING MOTION FOR
NUFFER UNITED STATES DISTRICT JUDGE
CentiMark Corporation (“CentiMark”) has filed a
motion (“Motion”) 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.
on the record and evidence presented, there is no genuine
dispute as to any of the following material facts.
owned a commercial building complex in Lindon, Utah, portions
of which-referred to as buildings 2 and 2.5-were leased to
the Tenants. 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. 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.
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
. . . .
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 ...