Hooksett Sewer Commission v. Penta Corp., 041316 NHSUP, 2013-CV-00540

Docket Nº:2013-CV-00540
Opinion Judge:Richard B. McNamara, Presiding Justice.
Party Name:Hooksett Sewer Commission v. Penta Corporation, I. Kruger, Inc. d/b/a Kruger, Inc., and Graves Engineering, Inc.
Case Date:April 13, 2016
Court:Superior Court of New Hampshire
 
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Hooksett Sewer Commission

v.

Penta Corporation, I. Kruger, Inc. d/b/a Kruger, Inc.,

and

Graves Engineering, Inc.

No. 2013-CV-00540

Superior Court of New Hampshire

April 13, 2016

UNPUBLISHED OPINION

Merrimack

ORDER

Richard B. McNamara, Presiding Justice.

The Plaintiff, Hooksett Sewer Commission ("Hooksett"), brought this action against the Defendants, Penta Corporation ("Penta"), I. Kruger, Incorporated d/b/a Kruger Incorporated ("Kruger"), and Graves Engineering, Incorporated, asserting various claims, including breach of contract, negligence, and breach of the implied warranty of fitness for a particular purpose. The action stems from the failure of Hooksett's wastewater treatment facility in March 2011. A number of motions are pending. For the reasons stated in this Order, Penta's Renewed Motion for Summary Judgment on Counts V and VI of Hooksett's Complaint is GRANTED; Hooksett's Motion to Compel is GRANTED IN PART; and Kruger's Motion to Limit Damages is DEFERRED.

I

Penta has filed a renewed motion for summary judgment on Counts V and VI of Hooksett's Complaint. Count V alleges that Hooksett relied on Penta's subcontractor, Kruger, in selecting the Kruger system and that Penta thereby violated the implied warranty of fitness for a particular purpose. (Compl. ¶ 52.) Count VI alleges that Hooksett relied upon Penta's skill and knowledge and that Penta breached its own implied warranty of fitness for a particular purpose. (Compl. ¶ 52.) Penta previously moved for summary judgment on these claims, and the Court denied the Motion on August 12, 2015, finding genuine issues of material fact existed. (Order, August 12, 2015, at 10.) Penta has renewed its motion asserting that further discovery has established that there is no genuine issue of material fact.

The Court has previously held that this transaction was covered by the Article 2 of the Uniform Commercial Code, RSA 382-A:2-101 et seq. RSA 382-A:2-315, entitled "Implied Warranty: Fitness for Particular Purpose, " provides:

Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified . . . an implied warranty that the goods shall be fit for such purpose.

The implied warranty of fitness for a particular purpose arises "by operation of law because of the relationship between the parties, the nature of the transactions, and the surrounding circumstances." Elliott v. Lachance, 109 N.H. 481, 483–84 (1969). Penta again asserts that it is entitled to judgment as a matter of law with respect to both Counts because the goods-the wastewater treatment plant-were provided according to plans and specifications furnished by Hooksett. Thus, according to Penta, Hooksett did not rely on the Defendant when it selected the Kruger IFAS system.

Comment 5 of RSA 382-A:2-315 is instructive here:

If the buyer himself is insisting on a particular brand he is not relying on the seller's skill and judgment and so no warranty results. But the mere fact that the article purchased has a particular patent or trade name is not sufficient to indicate nonreliance if the article has been recommended by the seller as adequate for the buyer's purposes.

In its order of August 12, 2015, the Court held that Penta was not entitled to summary judgment because there were genuine issues of material fact as to whether Hooksett relied upon it:

The Defendant argues that the final design, which was incorporated into the contract, mandates that the Defendant use the Kruger IFAS system; however, the language of the final design only states that "[t]he design is based on [Kruger's] IFAS process. "Approved equals will be accepted provided the equipment is at least of equal or better quality, function, and performance, and can meet the design requirements without...

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