678 F.3d 459 (6th Cir. 2012), 10-3584, V & M Star Steel v. Centimark Corp.

Docket Nº:10-3584.
Citation:678 F.3d 459
Opinion Judge:JANE B. STRANCH, Circuit Judge.
Party Name:V & M STAR STEEL, Plaintiff-Appellant, v. CENTIMARK CORPORATION, Defendant-Appellee.
Attorney:Eric W. Richardson, Vorys, Sater, Seymour & Pease LLP, Cincinnati, Ohio, for Appellant. John P. Liekar, Jr., Yukevich, Marchetti, Liekar & Zangrilli, P.C., Pittsburgh, Pennsylvania, for Appellee. Eric W. Richardson, Daniel J. Buckley, Vorys, Sater, Seymour & Pease LLP, Cincinnati, Ohio, Janice T....
Judge Panel:Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.
Case Date:April 25, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 459

678 F.3d 459 (6th Cir. 2012)

V & M STAR STEEL, Plaintiff-Appellant,

v.

CENTIMARK CORPORATION, Defendant-Appellee.

No. 10-3584.

United States Court of Appeals, Sixth Circuit.

April 25, 2012

Argued: June 7, 2011.

Page 460

ARGUED:

Eric W. Richardson, Vorys, Sater, Seymour & Pease LLP, Cincinnati, Ohio, for Appellant.

John P. Liekar, Jr., Yukevich, Marchetti, Liekar & Zangrilli, P.C., Pittsburgh, Pennsylvania, for Appellee.

ON BRIEF:

Eric W. Richardson, Daniel J. Buckley, Vorys, Sater, Seymour & Pease LLP, Cincinnati, Ohio, Janice T. O'Halloran, Stefanski & Associates, LLC, Youngstown, Ohio, for Appellant.

John P. Liekar, Jr., Yukevich, Marchetti, Liekar & Zangrilli, P.C., Pittsburgh, Pennsylvania, for Appellee.

Before: DAUGHTREY, MOORE, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

V & M Star Steel (" V & M" ) filed suit against Centimark Corporation (" Centimark" ) alleging breach of contract and negligence after an incident at its steelwork facility. The district court 1 granted summary judgment in favor of Centimark, ruling that V & M failed to produce sufficient

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evidence of causation to sustain either legal claim. Because genuine issues of material fact exist, we REVERSE the grant of summary judgment for Centimark and REMAND for trial.

I. BACKGROUND

In 2006, V & M entered into a contract with Centimark to replace part of the corrugated steel roof at V & M's plant in Youngstown, Ohio. The contract by its express terms consisted of multiple documents, including the " Construction Services Agreement" (" the Agreement" ), the exhibits with attachments that were referred to in the Agreement, and Centimark's " Final 2006 Roof Project Proposal" (" the Proposal" ) dated May 9, 2006.

In Article I.1 of the Agreement, the parties agreed that Centimark would perform the work described in the Proposal, and the parties referred to that work throughout the remainder of the Agreement as " the ‘ Services.’ " The Services included removing and replacing roofing materials, installing flashing, and cleaning on certain designated portions of the roof. Article VIII.1 of the Agreement stated that " [t]he standard of care for all Services provided by [Centimark] to [V & M] shall meet or exceed industry standards used by members of the construction industry practicing under similar conditions at the same time and locality." Centimark warranted that it had the capability, experience and means necessary to perform the services to the standard of care stated and in accordance with the terms of the Agreement. Art. VIII.4.

In addition to specifying the standard of care Centimark must meet in performing the Services, the Agreement also required Centimark to observe V & M's strict written safety standards. Those standards were found in Exhibit II to the Agreement, called the " Invitation to Bid Specifications," and in Attachment C to that exhibit. Section 2.6, titled, " Safety," specified that " [s]trict adherence by [Centimark] personnel to all site ... regulations is mandated." Section 2.6.1 stated that Centimark " shall abide by the V & M Star Construction Safety Program" and section 2.6.2 provided that Centimark " shall provide" a signed " Contractor Safety Agreement." In Section 4.9.1, Centimark agreed to perform all work " in such a manner so as not to disturb continuing operations at the facility" because no " shut down or outage, beyond those required for routine maintenance of the operating facilities, is planned for the duration of the project." Section 4.9.6 provided that Centimark " shall protect all plant utilities in the Work area. Any utility damaged by [Centimark] shall be immediately repaired, replaced or restored to service at [Centimark's] expense." Section 4.9.7 provided that Centimark " shall repair or replace in kind any damage by [Centimark] to [V & M's] structures not included in the scope of Work, at no cost to V & M Star." Section 4.9.8 provided that Centimark " shall take all necessary precautions for the protection of life and property during its construction activities. [Centimark] shall be responsible for maintaining the integrity and stability of adjacent structures ... resulting from its construction activities."

Section 26.1 of Attachment C to the " Invitation to Bid Specifications" set forth numerous " Contractor Safety and Environmental Requirements" V & M required Centimark to follow. Section 26.1 mandated that " [m]aterials shall be stored and stacked in a manner that prevents sliding, falling, or collapsing." V & M granted Centimark, its employees, and agents reasonable access to the facility to perform the Services only if they complied with V

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& M's safety rules and regulations. Article II.2; Article VIII.6.

Finally, the parties agreed that Centimark " shall be solely responsible for the acts and omissions of its employees," as well as others working under Centimark's direction in performing the services. Art. VIII.5. Centimark agreed to indemnify and hold V & M harmless from and against any and all damages incurred by V & M as a result of Centimark's negligence or breach of the Agreement. Art. IX.2. In the " Contractor Safety Agreement" included as part of the contract, Centimark agreed to comply with all V & M safety rules and regulations and acknowledged that failure to comply with V & M's safety rules " shall be grounds for ... recovery of damages."

After the contract was executed, Centimark received at V & M's facility bundles of various lengths of corrugated steel roofing panels manufactured by Flexospan. Each bundle contained approximately 30 panels of roof sheeting. The longer panels were approximately 21 feet by 6 feet and weighed around 90 pounds each. The bundles were secured by boards clamped with metal bands. Each bundle weighed between 2,500 and 3,000 pounds.

On Sunday, July 23, 2006, Centimark employees used a crane to lift the bundles onto those areas of the roof to be replaced, known as A-Bay, B-Bay, and C-Bay. The roof slope increased from a 3/12 pitch at A-Bay to a 4/12 pitch at C-Bay. On B-Bay and C-Bay, Centimark employees secured the bundles to the roof by screwing " kickers" to the perlins in the areas where the bundles were placed parallel to the roof line. Each bundle was secured by two kickers. On A-Bay, however, no kickers were used, and the bundles were placed perpendicular to the roof line.

V & M utilizes an overhead crane in A-Bay as part of its normal melt shop operations. The crane is positioned directly below the roof of A-Bay where Centimark staged the bundles without kickers.

Centimark employees started replacing the roof as soon as the bundles were staged. On Thursday, July 27, 2006, employees of both Centimark and Ohio Valley Sheeting and Painting were working on V & M's roof in different areas. Ohio Valley had performed roofing work for V & M for years, but it lost the bid for the roof replacement project to Centimark. Around 12:20 p.m., Centimark employees quit work due to rain. The record does not show what time Ohio Valley employees quit work that day. Around 7:00 p.m., a number of roof sheeting panels fell from A-Bay into one of V & M's electrical substations located directly below. V & M lost all power to its plant for more than 30 hours. V & M's damages for electrical repairs and lost profits was around $3 million.

After the power went out, Larry Collins, a V & M millwright, and Eric Crowl, of V & M security, climbed onto the roof to be sure that no more panels would fall onto the men working below at the substation. Collins testified it was obvious to him that one bundle of roofing panels had slid down A-Bay so that the bottom board securing the bundle was trapped in the gutter, and some of the panels were stopped at the gutter, but the top board to secure the panels was missing so that the rest of the panels made it to the substation directly below. Collins found only a few panels from the bundle left on the roof. Collins did not observe any panels coming all the way out of other bundles staged on the roof, but he testified that " almost every bundle that was up there was shifting down ...[; ] this was the only one that actually let go." Noticing that some of the bands on the bundles were broken, Collins and Crowl remarked to each other that

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they hoped the rest of the bundles would stay on the roof.

Collins further testified that it appeared the roofers walked off the job when it started to rain without putting away materials or equipment, and " nothing was secured." Believing that gravity or the wind had caused the panels to slide from the roof into the substation, Collins tied rope around two smaller bundles of unsecured roofing panels that were sitting up on a ledge. He and Crowl also tied down a generator.

Rusty Myers, Centimark's operations manager, testified consistently with Collins. Myers and Centimark's project foreman, Mike Helms, returned to V & M's plant shortly after the incident. V & M's roofing project manager, Justin Littleton, instructed Myers to secure the loose panels that remained on the roof. Myers testified that " [d]irectly above the substation you could see more of that bundle of panels sticking into the gutter up on the roof." Myers and Helms gathered the remaining panels from the bundle that slid, pulled them back from the low roof, and put them in a more secure place on the roof. Myers did not have any kickers to secure the other bundles on A-Bay, so he removed some of the metal bands from the bundles and screwed them across the corners of the bundles to secure them to the roof.

During deposition, V & M's counsel showed Myers photographs depicting stressed bands on bundles that appeared to be moving downhill on the roof. When asked if he observed that condition while he was on the roof, Myers answered, " I may very well have. It's normal; it's not abnormal." Myers acknowledged that a band...

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