Pacific Cheese Co, Inc. et al v. Advanced Coil Technology, LLC et al, No. 3:2015cv00351 - Document 299 (D. Nev. 2018)
Court Description: ORDER denying ECF Nos. 191 Motion for Summary Judgment, 206 Motion for Partial Summary Judgment, 255 Motion to Strike, 244 / 254 Motion for Leave to File Document and 267 Motion for Leave to File Document. Signed by Judge Miranda M. Du on 8/30/2018. (Copies have been distributed pursuant to the NEF - KW)
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Pacific Cheese Co, Inc. et al v. Advanced Coil Technology, LLC et al Doc. 299 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 PACIFIC CHEESE CO., INC, et al., Plaintiff, 10 ORDER v. 11 12 Case No. 3:15-cv-00351-MMD-VPC ADVANCED COIL TECHNOLOGY, LLC, et al., 13 Defendants. 14 15 I. SUMMARY 16 The parties to this diversity action are attempting to establish who is 17 responsible—and to what extent—for a fire in a cheese processing facility in Reno, 18 Nevada, that began inside a large piece of heating and cooling equipment called an Air 19 Handler (“AH”). Before the Court are Defendant Ray’s Heating Products, Inc. d/b/a RHP 20 Mechanical Systems’ (“RHP”) Motion for Summary Judgment (“RHP’s MSJ”) (ECF No. 21 191), and Defendant Hussmann Corporation’s (“Hussmann”) Motion for Partial Summary 22 Judgement (“Hussmann’s MPSJ”). (ECF No. 206.) With respect to RHP’s MSJ, Plaintiff 23 Travelers Property Casualty Company of America (“Travelers”) filed a response (ECF 24 No. 235.),1 and RHP filed a reply (ECF No. 238.). With respect to Hussmann’s MPSJ, 25 26 27 28 1The Court notes that ECF No. 235 is incorrectly formatted in violation of LR IA 10-1 because it is lacking line numbers and admonishes Travelers’ counsel to read, understand, and comply with the Court’s Local Rules going forward. Dockets.Justia.com 1 Travelers filed a response (ECF No. 253),2 and Hussmann filed a reply (ECF No. 264). 2 For the reasons set out below, both RHP’s MSJ and Hussmann’s MPSJ are denied. In 3 addition, several miscellaneous motions filed by the parties are also before the court, 4 which are addressed in Section VI, below. (ECF Nos. 254, 244, 255, 267.) These 5 motions are also denied. 6 II. BACKGROUND 7 The original plaintiffs in this case, Pacific Cheese Company, Inc. (“Pacific 8 Cheese”) and Lake Valley Properties, LLC (“Lake Valley”), which are under common 9 ownership, own and operate a cheese-processing facility in Reno, Nevada. (See ECF 10 No. 1.) More specifically, Pacific Cheese owns the cheese-processing facility (“the 11 Facility”), and Lake Valley owns the building. (See id.) As further explained below, a fire 12 that allegedly originated in the AH—again, a large piece of heating and cooling 13 equipment—allegedly caused substantial damage to the Facility and the building. 14 Plaintiff Travelers paid its insureds Pacific Cheese and Lake Valley for damage caused 15 by this fire pursuant to an insurance policy. Accordingly, Travelers stepped into the 16 shoes of Pacific Cheese and Lake Valley as their subrogee and now continues to 17 prosecute this case as Plaintiff. (See ECF No. 107.) Travelers filed the Third Amended 18 Complaint (“TAC”), the operative complaint for the purposes of these motions, in this 19 Court on August 25, 2016. (See id.) Except where stated, the following facts appear 20 without dispute in the summary judgment record. 21 22 23 24 25 26 27 28 2Travelers appears to have inadvertently filed a draft response (ECF No. 246), and then filed a corrected response (ECF No. 253) a day late. Travelers also appears to have dropped an argument in its corrected response. The Court has considered the corrected response (ECF No. 253) because the corrected response would supersede the earlier response. Moreover, the earlier draft appears to have been filed in error, and Hussmann does not appear to have been prejudiced by Travelers’ error because Hussmann’s reply brief (ECF No. 264) responds to the arguments raised in Travelers’ corrected response, and not the argument that Travelers appears to have dropped between its draft and the final document. In addition, Travelers requested oral argument in its response to Hussmann’s MSJ. Travelers’ request for oral argument is denied because the Court finds oral argument unnecessary to resolve Hussmann’s MPSJ. See LR 78-1. 2 1 The purpose of the Facility is processing cheese, meaning, for example, to shred 2 mozzarella and package it in plastic bags to be sold as shredded mozzarella cheese. 3 (See, e.g., ECF No. 235-4 at 4.) Cheese must be kept cool during processing to prevent 4 spoliation. (See id.) However, the equipment upon which the cheese is processed must 5 be periodically steam-cleaned. Thus, the temperature inside the entire cheese- 6 processing facility must be kept cool, but occasionally warmed up to dry out cheese- 7 processing equipment after steam cleaning. (TAC at ¶ 28.) The AH is the piece of 8 equipment that heats and cools the cheese processing facility for these purposes. (See, 9 e.g., ECF No. 235 at 4-5.) The AH is about the size of a shipping container, and contains 10 both a large gas burner for warming air, and refrigeration coils for cooling air, along with 11 a large fan that pulls air through the AH to be either heated or cooled. (See, e.g., id.) 12 The Facility was planned and constructed in 2004 and 2005. (See TAC ¶ 6.) The 13 AH was installed sometime in 2005. (See id. ¶ 22; ECF No. 206 at 3.) Haussmann sold 14 the AH to Pacific Cheese pursuant to a contract with Pacific Cheese where Haussmann 15 agreed to provide and install refrigeration equipment in the Facility. (See id. at 3.) The 16 AH was manufactured by Advanced Coil, Inc. operating under the business name 17 Phoenix Air Systems (“Phoenix”). (See id.; ECF No. 253 at 1.) 18 Something went wrong—perhaps a small fire within the AH—with the AH on 19 October 7, 2013. (See ECF No. 191 at 2.) Pacific Cheese called RHP and asked them to 20 send someone to troubleshoot the issue. (See id.) A technician from RHP, Paul 21 Carbone, came and inspected the AH that same day. (See id.) During that six-hour 22 service call, Mr. Carbone spoke to several Pacific Cheese employees about the AH, 23 although the content of those conversations is generally disputed. (See id. at 2-3; ECF 24 No. 235 at 7-9.) Travelers and RHP, however, do not dispute that Mr. Carbone told the 25 Pacific Cheese employees he spoke to that they should contact the AH’s manufacturer, 26 Phoenix, to have the AH inspected and further repaired. (See id.) But Travelers and RHP 27 specifically dispute whether Mr. Carbone told the Pacific Cheese employees he spoke 28 with: (a) he had fixed the AH during his service call such that it could and would continue 3 1 running; and (b) that Pacific Cheese must urgently contact Phoenix to have them inspect 2 and repair the AH to mitigate serious fire and safety concerns (as opposed to merely 3 indicating that Pacific Cheese may want to contact Phoenix, though it was not entirely 4 necessary). (See id.) 5 A larger fire started in the AH on July 9, 2014, which allegedly did substantial 6 damage to the cheese processing facility and the building it is contained in. (See TAC at 7 ¶¶ 38, 47.) What Mr. Carbone did and said forms the basis of Travelers’ claims against 8 RHP, and are also relevant to RHP’s MSJ. Specifically, the TAC alleges two causes of 9 action against RHP—negligence and breach of contract. (See TAC at ¶¶ 170-184.) 10 Travelers basically alleges that Mr. Carbone, and therefore RHP, was negligent and at 11 least partially responsible for the larger July 9, 2014 fire because he said he fixed the AH 12 when he had not, and failed to adequately warn Pacific Cheese of the danger it faced if 13 Pacific Cheese did not get Phoenix to inspect and properly repair the AH. (See ECF No. 14 235 at 3-4.) 15 Travelers also seeks to hold Hussmann at least partially liable for the July 9, 2014 16 fire because Hussmann sold Pacific Cheese the AH as part of a larger heating and 17 cooling system, and installed the AH. Specifically, the TAC alleges the following causes 18 of action against Hussmann: (1) products liability; (2) negligence; and (3) breach of 19 warranty. (See TAC at ¶¶ 66-72, 99-106, 139-148). Travelers basically alleges that the 20 AH as installed was dangerous and defective, and that issues with the AH or its 21 installation—attributable to Hussmann—also caused the July 9, 2014 fire. (See generally 22 id.) 23 In addition, Travelers also sought to hold other entities involved in the 24 manufacture, installation, and maintenance of the AH liable for the July 9, 2014 fire. 25 However, at this time, Travelers has reached settlement agreements with those other 26 entities. (See ECF No. 295.) Further, Plaintiffs stipulated to the dismissal of Hussmann’s 27 former wholly-owned subsidiary, Krack Corporation, which has since merged with 28 4 1 Hussmann. (See ECF No. 73.) Therefore, at this time, only RHP and Hussmann remain 2 as defendants in this case. 3 III. LEGAL STANDARD 4 “The purpose of summary judgment is to avoid unnecessary trials when there is 5 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 6 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 7 pleadings, the discovery and disclosure materials on file, and any affidavits “show there 8 is no genuine issue as to any material fact and that the movant is entitled to judgment as 9 a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is 10 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 11 find for the nonmoving party and a dispute is “material” if it could affect the outcome of 12 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 13 (1986). Where reasonable minds could differ on the material facts at issue, however, 14 summary judgment is not appropriate. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th 15 Cir. 1995). “The amount of evidence necessary to raise a genuine issue of material fact 16 is enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth 17 at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l 18 Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary 19 judgment motion, a court views all facts and draws all inferences in the light most 20 favorable to the nonmoving party. See Kaiser Cement Corp. v. Fishbach & Moore, Inc., 21 793 F.2d 1100, 1103 (9th Cir. 1986). 22 The moving party bears the burden of showing that there are no genuine issues 23 of material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In 24 order to carry its burden of production, the moving party must either produce evidence 25 negating an essential element of the nonmoving party’s claim or defense or show that 26 the nonmoving party does not have enough evidence of an essential element to carry its 27 ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 28 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56’s requirements, 5 1 the burden shifts to the party resisting the motion to “set forth specific facts showing that 2 there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may 3 not rely on denials in the pleadings but must produce specific evidence, through 4 affidavits or admissible discovery material, to show that the dispute exists,” Bhan v. NME 5 Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show 6 that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 7 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere existence of a 8 scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson, 9 477 U.S. at 252. 10 11 12 IV. RHP’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 191) RHP moved for summary judgment as to both causes of action that Travelers asserted against RHP. The Court addresses each in turn below. 13 A. 14 As an initial matter, the Court determines that Nevada law governs Travelers’ two 15 claims against RHP. “In diversity actions, as here, federal courts apply substantive state 16 law.” Walker v. State Farm Mut. Auto. Ins. Co., 259 F. Supp. 3d 1139, 1144 (D. Nev. 17 2017) (first citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); and then citing 18 Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007)); see also Love v. 19 Associated Newspapers, Ltd., 611 F.3d 601, 610 (9th Cir. 2010) (“Federal courts must 20 apply state substantive law to state law claims, including the forum state’s choice of law 21 rules.”). 22 Governing Law In Nevada, the Second Restatement’s most significant relationship standard 23 generally governs choice-of-law issues in tort actions. See Gen. Motors Corp. v. Eighth 24 Judicial Dist. Court of State of Nev. ex rel. Cty. of Clark, 134 P.3d 111, 116 (Nev. 2006). 25 Pursuant to the Second Restatement, the place where the injury occurred determines 26 the law to be applied, unless some other state has a more significant relationship to the 27 “occurrence and the parties.” Id. (citing Restatement (Second) of Conflict of Laws § 145). 28 Here, all alleged acts or omissions bearing on Travelers’ claims against RHP occurred in 6 1 Reno, Nevada. No other state has a more significant relationship to the interactions 2 between Travelers and RHP with respect to the July 9, 2014 fire. And the parties do not 3 contend otherwise. Therefore, the Court applies Nevada law to Travelers’ negligence 4 claim. 5 6 The Court also assumes that Nevada law governs Travelers’ breach of contract claim against RHP because the parties do not contend otherwise.3 7 B. 8 Travelers seeks to impose liability on RHP for a negligent inspection of the AH by 9 one of RHP’s technicians, Mr. Carbone. RHP argues that it cannot be held liable under a 10 negligence theory because it owed no duty to Pacific Cheese and Travelers cannot 11 show the requisite causal link between Mr. Carbone’s service visit and the July 9, 2014 12 fire. However, the factual aspect of RHP’s argument is that RHP told Pacific Cheese to 13 contact Phoenix to get the AH inspected, which relieved RHP of any duty it owed to 14 Pacific Cheese. (See ECF No. 191 at 8.) Further, RHP argues that Pacific Cheese’s 15 failure to compel Phoenix to come out and inspect the AH after Mr. Carbone’s visit 16 caused the July 9, 2014 fire, not any act or omission of Mr. Carbone. (See id. at 8-9.) 17 The Court is not persuaded by RHP’s arguments. Negligence 18 Under Nevada law, “to prevail on a traditional negligence theory, a plaintiff must 19 demonstrate that ‘(1) the defendant owed the plaintiff a duty of care, (2) the defendant 20 breached that duty, (3) the breach was the legal cause of the plaintiff’s injuries, and (4) 21 the plaintiff suffered damages.’ Courts often are reluctant to grant summary judgment in 22 negligence actions because whether a defendant was negligent is generally a question 23 of fact for the jury to resolve.” Foster v. Costco Wholesale Corp., 291 P.3d 150, 153 24 (Nev. 2012) (citations omitted). Here, the Court finds that genuine issues of material fact 25 exist as to whether RHP’s inspection of the AH was negligent, precluding granting 26 27 28 3Travelers and RHP have not provided the Court with a copy of the applicable contract, but have also offered no argument or evidence that it was governed by the law of any state other than Nevada. Further, all relevant acts or omissions under the contract appear to have occurred in Reno, Nevada. 7 1 summary judgment in RHP’s favor. Thus, RHP’s MSJ is denied with respect to Travelers’ 2 negligence cause of action. 3 First, with respect to duty of care, the court disagrees with RHP’s argument that 4 RHP owed Pacific Cheese no duty to repair the AH. RHP argues it owed Pacific Cheese 5 no duty because Mr. Carbone told Pacific Cheese employees to contact Phoenix, the 6 AH’s manufacturer, and because later emails of Pacific Cheese employees purportedly 7 establish that Pacific Cheese did not rely on RHP. (See ECF No. 191 at 8.) RHP cites no 8 applicable law to support this argument, and the Court has not located any. In contrast, 9 the Restatement (Second) of Torts provides that professionals such as RHP owe 10 customers like Pacific Cheese a duty to “exercise the skill and knowledge normally 11 possessed by members of that profession or trade . . . .” Restatement (Second) of Torts 12 § 299A. Travelers contends that Mr. Carbone improperly diagnosed the issues with the 13 AH and failed to sufficiently warn Pacific Cheese regarding the dangers of its continued 14 operation. (See ECF No. 253 at 2-3.) The facts and evidence presented by the parties 15 here merely establish that the parties dispute whether Mr. Carbone exercised the skill 16 and knowledge normally possessed by HVAC repair technicians, and the Court cannot 17 say as a matter of law that RHP owed Pacific Cheese no duty under the circumstances 18 here. 19 Second, with respect to the breach element of Travelers’ negligence claim, issues 20 of disputed material fact and credibility determinations preclude the Court from ruling as 21 a matter of law that RHP did not breach the duty it owed to Pacific Cheese. The parties 22 dispute both the merits of Mr. Carbone’s inspection and what he did or did not tell the 23 Pacific Cheese employees he spoke with towards the end of his service visit at Pacific 24 Cheese. (See ECF No. 191 at 2-3; ECF No. 235 at 7-9.) Indeed, the Court agrees with 25 Travelers that material factual disputes exist regarding: what Mr. Carbone communicated 26 to Pacific Cheese employees; whether RHP acted as a reasonable HVAC repair 27 company would have with respect to Mr. Carbone’s service visit on the AH; and whether 28 Pacific Cheese took reasonable steps to have Phoenix service the AH following Mr. 8 1 Carbone’s visit, including whether Pacific Cheese understood the gravity of the issues 2 affecting the AH following Mr. Carbone’s visit. (See ECF No. 235 at 13-14.) These 3 important questions are questions of fact, and some turn on a determination of Mr. 4 Carbone’s credibility. As such, these questions relevant to breach are not properly 5 resolved on summary judgment. 6 Finally, with respect to the causation element of Travelers’ negligence claim, the 7 Court cannot find as a matter of law that any errors in Mr. Carbone’s inspection of the 8 AH did not contribute to the larger, July 9, 2014 fire. Travelers contends that the larger 9 fire would not have happened if Mr. Carbone had properly diagnosed the issues with the 10 AH and sufficiently warned Pacific Cheese of the danger associated with continuing to 11 operate the AH. (See, e.g., ECF No. 235 at 12-13.) RHP basically disputes that any 12 action or inaction taken by Mr. Carbone contributed to the larger fire, but, again, RHP’s 13 argument depends on the Court deciding disputed issues of material fact in RHP’s favor, 14 which the Court cannot generally do at the summary judgment stage. See, e.g. Joynt v. 15 Cal. Hotel & Casino, 835 P.2d 799, 801 (Nev. 1992) (stating that questions of “proximate 16 cause are generally questions of fact.”). 17 In sum, the Court denies RHP’s MSJ with respect to Travelers’ negligence claim. 18 C. 19 Travelers also seeks to impose liability on RHP for the inspection of the AH by Mr. 20 Carbone under a breach of contract theory. Travelers alleges that Mr. Carbone did not 21 perform his inspection of the AH with reasonable care in a workmanlike manner—in 22 breach of the contract between RHP and Pacific Cheese where RHP agreed to “inspect 23 and examine the [AH] to identify and repair the condition(s) that resulted in the filters 24 inside the [AH] catching fire.” (TAC at ¶ 179.) RHP does not dispute that it entered into a 25 contract with Pacific Cheese, but instead argues it did not breach that contract because 26 Mr. Carbone instructed Pacific Cheese to contact Phoenix to have the AH repaired. (See 27 ECF No. 191 at 9:26-10:9.) RHP further argues that it cannot be held liable for breach of 28 contract because Travelers cannot prove that any act or omission on RHP’s part caused Breach of Contract 9 1 the July 9, 2014 fire. (See id. at 10:10-16.) RHP’s argument with respect to Travelers’ 2 breach of contract claim fails for the same reason that RHP’s argument fails with respect 3 to Travelers’ negligence claim: it turns on questions of disputed material fact that are not 4 appropriately resolved at the summary judgment stage. 5 In Nevada, “[t]o succeed on a breach of contract claim, a plaintiff must show four 6 elements: (1) formation of a valid contract; (2) performance or excuse of performance by 7 the plaintiff; (3) material breach by the defendant; and (4) damages.” Laguerre v. Nev. 8 Sys. of Higher Educ., 837 F. Supp. 2d 1176, 1180 (D. Nev. 2011) (citing Bernard v. 9 Rockhill Dev. Co., 734 P.2d 1238, 1240 (Nev. 1987) (“A breach of contract may be said 10 to be a material failure of performance of a duty arising under or imposed by 11 agreement.”)). 12 Here, Travelers and RHP do not dispute whether a valid contract was formed 13 between Travelers and RHP or whether Pacific Cheese performed its obligations under 14 that contract. As mentioned above, RHP instead contests the breach and damages 15 elements of Travelers’ breach of contract claim. However, the Court finds that disputed 16 questions of material fact preclude granting summary judgment in RHP’s favor. As to 17 breach, whether RHP breached its contract with Travelers depends on what Mr. 18 Carbone told the Pacific Cheese employees at the conclusion of his service call. RHP 19 and Travelers specifically dispute what Mr. Carbone said and to whom he spoke. (See 20 ECF No. 191 at 2-3; ECF No. 235 at 7-9.) And with respect to RHP’s argument on the 21 damages prong—which is that Mr. Carbone’s inspection cannot have caused the July 9, 22 2014 fire—that too depends on what Mr. Carbone said and to whom he spoke. 23 Thus, the facts and evidence presented here do not warrant a grant of summary 24 judgment in RHP’s favor with respect to Travelers’ breach of contract claim, and RHP’s 25 MSJ is therefore denied. 26 V. HUSSMANN’S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF NO. 206) 27 Hussmann moved for partial summary judgment seeking an order from the court 28 that the maximum damages Travelers can recover against Hussmann is $139,402—the 10 1 line item cost of the AH—because of a damages limitation clause in the contract 2 between Hussmann and Pacific Cheese. (See ECF No. 206.) Because the Court does 3 not agree with Hussmann that the damages limitation clause it identified clearly limits the 4 amount of damages Travelers may recover against Hussmann here, the Court denies 5 Hussmann’s MPSJ. 6 A. 7 Hussmann and Travelers do not dispute that the contract between Hussmann and 8 Pacific Cheese is governed by Missouri law. (See id. at 6:25-26; ECF No. 253 at 3:1-4.) 9 Travelers does dispute whether the limitation Hussmann relies upon is part of the 10 contract. (See ECF No. 253 at 18-20.) However, Hussmann offers the affidavit of Olin 11 Cunningham, who states in the affidavit that he is personally familiar with the transaction 12 between Hussmann and Pacific Cheese, and confirms that the contract that Hussmann 13 relies on and attached to Hussmann’s MPSJ is the complete contract between 14 Hussmann and Pacific Cheese. (See ECF No. 207-2.) Travelers offers no competing 15 affidavit or other evidence in response. (See ECF No. 253 at 18-20.) Thus, the Court 16 finds for the purposes of ruling on Hussmann’s MPSJ that the limitation of liability 17 provision is part of the contract between Hussmann and Pacific Cheese because in 18 opposing Hussmann’s MSJ, Travelers “must produce specific evidence, through 19 affidavits or admissible discovery material, to show that the dispute exists,” Bhan, 929 20 F.2d at 1409. Again, here, Travelers did not. Preliminary Matters 21 B. 22 Under Missouri law, contract interpretation is a question of law. See, e.g., Finova 23 Capital Corp. v. Ream, 230 S.W.3d 35, 42 (Mo. Ct. App. 2007) (citation omitted). In 24 interpreting a contract, the court should “attempt to ascertain the parties’ intention, 25 looking only to the contract language unless the contract is ambiguous.” Id. “Ambiguity 26 depends on context. Contract language is not interpreted in a vacuum, but by reference 27 to the contract as a whole.” Purcell Tire & Rubber Co. v. Exec. Beechcraft, Inc., 59 Contract Interpretation 28 11 1 S.W.3d 505, 510 (Mo. 2001). A contract is not ambiguous merely because the parties 2 disagree as to its construction. See Finova Capital Corp., 230 S.W.3d at 48. 3 The relevant sentence of the limitation of liability provision that Hussmann seeks 4 to rely on here reads: “Buyer’s remedies set forth herein are exclusive, and the total 5 liability of Hussmann with respect to any purchase of Hussmann products, whether 6 based on contract, warranty, negligence, indemnity, strict liability or otherwise, shall not 7 exceed the purchase price of the unit of product upon which such liability is based.” 8 (ECF No. 207-1 at 25.) Hussmann argues that this provision limits the damages that 9 Travelers can potentially recover against Hussmann to the itemized cost of the AH, 10 $139,402. (See ECF No. 206.) Travelers argues that this provision cannot limit the 11 damages it may recover against Hussmann to the cost of the AH because the AH is not 12 a ‘Hussmann product;’ the AH is a Phoenix product. (See ECF No. 253 at 16:12-25). The 13 Court agrees with Travelers. 14 The Court finds that the limitation of liability provision Hussmann seeks to rely on 15 here is unambiguous, and does not limit Hussmann’s potential damages exposure to the 16 itemized cost of the AH. First, the plain meaning of ‘Hussmann products’ is ‘products 17 manufactured by and/or branded as Hussmann products,’ not ‘products of third parties 18 sold by Hussmann,’ as Hussmann would like the Court to find. Second, the AH is clearly 19 identified as a Phoenix product throughout the contract. (See ECF No. 107-1 at 6, 17, 20 21-24.) Some products in the contract are identified as Hussmann products. (See id. at 21 6.) Third, interpreting ‘Hussmann products’ as Hussmann would like the Court to renders 22 other language contained on the same page of the same contract superfluous, and thus 23 cannot be correct. For example, paragraph 1 of the “Terms and Conditions” of the 24 contract uses the phrasing, “the sale of products by Hussmann Corporation.” (See id. at 25 25.) Therefore, the drafter of the contract cannot have intended ‘Hussmann products’ to 26 mean ‘the sale of products by Hussmann,’ because both phrasings appear on the same 27 page of the contract. If the drafter of the contract meant ‘the sale of products by 28 Hussmann,’ which could arguably encompass third parties’ products, he or she would 12 1 have written ‘the sale of products by Hussmann’ instead of ‘Hussmann products.’ He or 2 she did so on the very same page of the contract. Therefore, ‘Hussmann products’ is 3 intended as a limitation, meaning the limitation of liability provision at issue here would 4 only apply if a product manufactured by, or branded as, Hussmann were to cause any 5 alleged injury to a party asserting a cause of action against Hussmann. In sum, the facts and evidence presented here do not support granting partial 6 7 summary judgment in Hussmann’s favor. Therefore, Hussmann’s MPSJ is denied. 8 VI. OTHER MOTIONS RHP and Travelers filed several unhelpful documents after briefing on RHP’s MSJ 9 10 was complete in an apparent attempt to re-argue RHP’s MSJ. (See ECF Nos. 240, 241, 11 243, 255, 259.) These motions and other documents were filed without first obtaining 12 leave of the Court in violation of LR 7.2(g), are generally improper, and are duplicative of 13 RHP and Travelers’ briefing on RHP’s MSJ. Therefore, the Court has not considered 14 them. Accordingly, RHP’s Motion to Strike (ECF No. 255) is denied as moot. Similarly, Travelers filed a motion for leave to file a surreply in connection with 15 16 RHP’s MSJ. (ECF No. 254 (incorrectly filed initially as ECF No. 244).)4 As explained 17 above, the Court has denied RHP’s MSJ. Therefore, there is no need for a surreply and 18 Travelers’ motion (ECF Nos. 244, 254) is denied as moot. See also LR 7-2(b). In addition, Travelers filed a motion for leave to file a surreply in connection with 19 20 Hussmann’s MPSJ. Because the Court has denied Hussmann’s MPSJ, Travelers’ 21 motion for leave to file a surreply (ECF No. 267) is also denied as moot. See also LR 7- 22 2(b). 23 VII. CONCLUSION 24 The Court notes that the parties made several arguments and cited to several 25 cases not discussed above. The Court has reviewed these arguments and cases and 26 27 28 4The Court again admonishes Travelers’ counsel to exercise greater care going forward with respect to the documents it files with this Court. 13 1 determines that they do not warrant discussion as they do not affect the outcome of the 2 motions before the Court. 3 4 5 6 7 8 9 10 It is therefore ordered that Defendant RHP’s Motion for Summary Judgment (ECF No. 191) is denied. It is further ordered that Defendant Hussmann’s Motion for Summary Judgment (ECF No. 206) is denied. It is further ordered that Defendant RHP’s Motion to Strike (ECF No. 255) is denied. It is further ordered that Plaintiff Travelers’ Motions for Leave to File Sur-Replies (ECF Nos. 244, 254, 267) are denied. 11 12 DATED THIS 30th day of August 2018. 13 14 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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