V & M Star, LP v. Centimark Corporation, 596 F.3d 354

A company was alleged to have breached of a contract by failing to maintain the promised standard of care at par with the industry standards. Opinions of the experts were relied upon to define the scope of ‘industry standards’.
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Introduction

The case of V & M Star v. Centimark Corporation is about a mishap at the construction site. A company was alleged to have breached a contract by failing to maintain the promised standard of care at par with the industry standards.

Facts

In the year 2006, the V & M Company entered into a contract with Centimark, to replace the corrugated steel roof in the plant of V & M in Ohio. The contract was not constituted in just one document, rather, the contract had several other documents as parts of the contract. The contract was a combination of an assortment of documents, such as the construction service agreement. Moreover, the exhibits of the attachments were referred into the agreement. Another document which formed a part of the contract was Centimark’s final proposal dated May 9, 2006. The agreement which formed a major part of the contract between V & M and Centimark provided that the company working to repair the roof shall work according to the provisions of the proposal. Throughout the agreement, the parties had referred to the work being done as ‘services provided’. These ‘services’ included the process of removing and replacing the material of the roof, and also included the process of installing, flashing, and cleaning some portions of the roof which required a tad bit more attention than the rest. This process was done on some specific portions of the roof.

The agreement was well written and succinct, and the company Centimark also stated in the agreement that they would maintain the industry standards of care, and that they alone would be liable for the acts and omissions of the employees, as well as for the other people who were working under the direction of the Centimark.

Upon the execution of the contract, a large number of steel roofing panels were available for Centimark to work with. These panels were large and heavy, where each bundle of 30 panels weighed around 2,500 to 3,000 pounds. These panels were placed on sloped roofs, where the slope tended to increase with the change in bays. The practice in the industry was to place these panels on the roofs perpendicular to the roof line and then secure them with kickers. With the increase in slope at B-Bay and C-Bay, the construction workers used the kickers to secure the panels along the roof line, but they did not use any kickers to secure the panels in the A-Bay, rather they placed them perpendicular only to the roof line. These panels slid, and with nothing to support them, they fell, where the power supply of the plant was. The power at the plant of V & M was shut down for 30 hours. The costs for the damage caused due to the panels having fallen and the damages from the loss of profit from the plant having shut for so long was estimated to be around $3 Million.

Issues

Both the parties moved for summary judgment, and the Court was to deliberate on whether the company Centimark was liable for the damages incurred by V & M Co.?

Held

Both the parties to the case produced their respective expert reports, however, the report of the expert which was submitted by V & M was considered more reliable, wherein it was stated by the expert that in the business of roof replacement, it was a common practice to secure the panels with kickers. Moreover, the use of kickers to keep the things in place on an inclined slope was a common and normal practice. It was stated in the report of the expert that the bands on which the bundles were placed could not be expected to hold the panels in place, since there are chances that they may be loosened during transit. The expert stressed that it was the absence of the kickers in the A-Bay which caused the panels to slide down.

The district court held the company and Centimark have made ambiguous provisions in the agreement by stating that they would maintain an equal or higher standard of care during their work, which they lacked in doing. However, the Court did rule that Centimark could not be held strictly liable for the damages which were suffered by V & M. Further, it was held that V & M was not entitled to an inference being made for negligence on the part of Centimark under the doctrine of res ipsa loquitor since the roof on which employees of Centimark were working was not under the exclusive control of the Centimark when the alleged incident of negligence occurred. The district court had also rendered the expert opinion presented by V & M inadmissible.

The Court of appeals took a rather different turn in this case and laid down that the contract indeed was not ambiguous between V & M and Centimark, and all the requirements had been laid down in the contract. Centimark had assured that it would maintain industry-level of care in doing the work, but the dispute between parties was related to the meaning of ‘industry level of care’. Court of appeals held that V & M shall have to prove with causation that the damage they so incurred was due to the breach of contract or negligence on the part of Centimark. In the eyes of the Court of Appeals, V & M had met the burden which had been placed on it in the light of the summary judgment. The Court of appeals also stated that the opinion of an expert presented by V & M was admissible. The Court of Appeals reversed the judgment delivered by the District Court, holding that the summary judgment in favour of Centimark should not have been granted, and remanded the case for review.

Analysis

In V & M Star v. Centimark Corporation, the Court of Appeals took a great deal of interest in the opinion presented by the expert which had been brought in to testify by V & M and stated that the opinion was not only admissible but was also credible since the expert was stating with conviction based on more than forty years of experience in changing roof sheets, that the panels had slipped off the roof as a result of the negligent conduct of the employees where they failed to apply the kickers to hold the panels in place when they were on the roof. This negligence caused a considerable amount of damage to V & M.

Conclusion

The Court considered the opinion of the expert and overturned the decision given by the District Judge in favour of Centimark. The Court of Appeals stated that the summary judgment should never have been given in favour of Centimark. The Court of Appeals reversed the judgment and remanded it back for trial.

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