Bennett v. Poipu Resort Partners, L.P.
| Decision Date | 07 September 2021 |
| Docket Number | Civ. No. 18-00171 ACK-KJM |
| Citation | 558 F.Supp.3d 872 |
| Parties | Beverly K. BENNETT, Plaintiff, v. POIPU RESORT PARTNERS, L.P., a Domestic Limited Partnership; Diamond Resorts International Club, Inc., a Foreign Profit Corporation; Association of Apartment Owners of Poipu Point, a Domestic Nonprofit Corporation, Defendants. Poipu Resort Partners, L.P., a Domestic Limited Partnership; Diamond Resorts International Club, Inc., a Foreign Profit Corporation; Association of Apartment Owners of Poipu Point, a Domestic Nonprofit Corporation, Third-Party Plaintiffs, v. Emser Tile, LLC, a California Corporation; John Does 1-10; Jane Does 1-10; Roe Corporations 1-10; Roe Partnerships 1-10; Roe Business Entities 1-10, Third-Party Defendants. |
| Court | U.S. District Court — District of Hawaii |
Harvey M. Demetrakopoulos, Roy K.S. Chang, Shim & Chang, Honolulu, HI, for Plaintiff.
Dennis O'Connor, E.W., Jr., Jeffre W. Juliano, O'Connor Playdon Guben & Inouye LLP, Honolulu, HI, for Defendants/Third-Party Plaintiffs.
Ralph J. O'Neill, Matthew A. Hemme, MacDonald Rudy O'Neill & Yamauchi, LLP, Honolulu, HI, for Third-Party Defendants Emser Tile.
ORDER GRANTING IN PART AND DENYING IN PART THIRD-PARTY DEFENDANT AND COUNTERCLAIMANT EMSER TILE, LLC'S MOTION FOR PARTIAL SUMMARY JUDGMENT (ECF No. 95)
Plaintiff Beverly Bennett brought this lawsuit to recover damages stemming from her fractured femur
after she slipped and fell on wet tile while walking back to her vacation condominium at the Point at Poipu. Bennett sued the owners of the Point at Poipu-Poipu Resort Partners, L.P., Diamond Resorts International Club, Inc., and the Association of Apartment Owners of Poipu Point (collectively, the "Owners")-for negligence. In turn, the Owners filed a Third-Party Complaint against the company that manufactured the tiles, Emser Tile, LLC. Emser now moves for partial summary judgment on the breach of warranty, failure to warn, and negligent misrepresentation claims against it, ECF No. 95.
For the reasons discussed below, the Court GRANTS IN PART AND DENIES IN PART Emser's Motion for Partial Summary Judgment, ECF No. 95.
The following facts are principally drawn from the Complaint, ECF No. 1, the First Amended Third-Party Complaint ("FAC"), ECF No. 69, Emser's concise statement of facts ("CSF"), ECF No. 96, and the Owners’ CSF, ECF No. 162.
In 2012, the Owners of The Point at Poipu, a time-share resort in Kauai, undertook an estimated five-year renovation of the property. See Mot. at 1. The renovation included installation of ceramic tiles on the walking surfaces at the ten resort buildings. Id. The Owners hired Building Envelope Technology & Research, Inc. ("the architect") as the architect, Layton Construction Company ("Layton") as the general contractor, and Global Stone, Inc. ("Global Stone") as the tile subcontractor. Id. Layton in turn contracted with Emser to supply the tiles. Id. at 5.
When the Owners were choosing between two types of tiles for the renovation, Emser sent its product information, known as a "cut sheet" to Layton on September 10, 2012. See Emser Ex. C; Johnson Decl. ¶ 14. Among this information were specifications for the Bombay tile line, stating that the coefficient of friction of the Bombay tiles based on the ASTM C1028 test was equal to or greater than 0.60 wet. See Emser Ex. C. In layman's terms, the coefficient of friction is "the degree of slip resistance." Mihailovich v. Laatsch, 359 F.3d 892, 896, n.2 (7th Cir. 2004) ; see also Shorter Oxford English Dictionary 1035 (5th ed. 2002) (defining the coefficient of friction as "the ratio between the force necessary to move one surface horizontally over another and the normal force each surface exerts on the other"). "The higher the [coefficient of friction], the less slippery the [surface] w[ ill] be." Mihailovich, 359 F.3d at 921 n.2. At the hearing, Emser's counsel admitted that Emser is unable to identify which precise laboratory generated the 0.6 coefficient of friction both wet and dry supplied on the cut sheet.
Other than providing information requested by the contractors, Owners, and the architect, Emser was not involved in the selection of the tile installed during the project. Johnson Decl. ¶ 18. The Emser employee responsible for corresponding with the Owners, Linda Hart, was aware that one of the Owners (Diamond Resorts) "always wanted to make sure that [the tile] hit at least a .60 [wet coefficient of friction]." Def. Ex K (Deposition of Linda Hart) at 17:3-23. Based on that requirement as well as price and color preferences, Linda Hart recommended three tile options to the Owners. Id. at 14:10-14. After reviewing Emser's cut sheet and product specifications, the Owners selected the Bombay tiles in the Salsette color. Johnson Decl. ¶¶ 16, 19. Emser sent the first shipment of tiles to be used at Building 4 within 48 hours of September 28, 2012. Id. ¶¶ 29, 30.
On October 5, 2012, Global Stone requested assistance from Emser in providing information to the design consultant. Id. ¶ 27. In response to Global Stone's request, Emser prepared a "Bombay Master Certificate" that contained information about the Bombay tiles, including their technical specifications. Makovski Decl. ¶¶ 14-17.
To prepare the Bombay Master Certificate, Emser reviewed the results of testing performed by the Title Council of North America laboratory (the "TCNA laboratory") that occurred in June of 2011. Id. ¶ 20; Emser Ex. 2. The TCNA laboratory report stated that the coefficient of friction based on the ASTM C1028 test was an average of 0.58 wet. Makovski Decl. ¶ 13. Based on this information, Emser listed the coefficient of friction as greater than 0.55 wet. Id. ¶ 17; see Emser Ex. 3. Emser submitted the Bombay Master Certificate to Global Stone and Layton on October 11, 2012. Johnson Decl. ¶ 38; see Emser Ex. K; Emser Ex. L.
Two weeks later, the architect asked Emser to revise and resubmit the Bombay Master Certificate to confirm that Emser approved the submitted mortar and grout for use and installation of the Bombay tiles as required for a 10-year system warranty.
Johnson Decl. ¶ 42; see Emser Ex. N, Emser Ex. O.
In response, Emser provided a Revised Bombay Master Certificate, which repeated that the coefficient of friction of the Bombay tiles was greater than or equal to 0.55 wet. Johnson Decl. ¶ 47; Makovski Decl. ¶ 20; see Emser Ex. 4. The architect stamped the certificate with the words See Def. Ex. F.
Layton handled the sale of tiles for each building as separate contracts. Johnson Decl. ¶ 9; see Emser Ex. A. Layton therefore required Emser to submit a separate unconditional lien waiver as a materials supplier for each building. Johnson Decl. ¶ 11. As required by Layton, in September 2014 Emser submitted the unconditional lien waiver to Layton as a materials supplier for the tiles that it sold for installation at Buildings 5 and 7. Id. ¶ 59; see Emser Ex. V. Emser shipped the tile for Buildings 5 and 7 on or about September 26, 2014. Johnson Decl. ¶ 54.
Emser's invoices stated that each sale was subject to the Terms and Conditions of Sale ("Terms and Conditions") found on Emser's website. Johnson Decl. ¶ 56; see Emser Ex. T. On its website, Emser provided a one-year warranty for manufacturing defects and limited the warranty to the direct purchaser. See Emser Ex. U. Emser disclaimed all other warranties, express or implied, including warranties of merchantability and fitness for a particular purpose or use. Id.
While vacationing at The Point at Poipu in October of 2017, Bennett slipped and fell on the ceramic tiles on the walkways outside of Building 5. Compl. ¶ 16. As a result of the fall, Bennett fractured
her right femur and claims she suffered "other bodily injuries, mental anguish, and emotional distress." Id. ¶ 17. She alleges that the Owners knew or should have known that the tiled walkways would become slippery when wet. Id. ¶ 12. In her Complaint, Bennett claims negligence, breach of warranty, and nuisance, and requests punitive damages. See
id. ¶¶ 20, 21, 27.
Emser is involved in this litigation as a Third-Party Defendant. The First Amended Third-Party Complaint against Emser alleges: (1) contribution, subrogation, and indemnity, (2) breach of express and implied warranties, (3) failure to warn, (4) negligent misrepresentation, and (5) strict product liability.
Three lawsuits have been filed as a result of injuries allegedly sustained in slip and fall accidents at Buildings 5 and 7, and one has been filed in connection with tiles installed at Building 8. Mot. at 7. On July 18, 2016, La Sonya Allen fell at Building 7. Id. Fifteen months later on October 4, 2017, Bennett fell at Building 5. Id. On June 13, 2018, Elrose Caruso fell at Building 7. Id. On August 13, 2018, the accident at Building 8 occurred. Id.
As a part of this litigation, the Owners’ expert engineer Bernard Maddox tested the leftover boxed Bombay Salsette tiles from the Poipu project. Def. CSF ¶ 27. Using the ASTM C 1028 protocol, the results of the 2020 test revealed an average wet coefficient of friction of 0.48. Id. The results of the 2021 test found an average wet coefficient of friction under 0.49. Id.
Bennett originally brought this lawsuit on May 14, 2018. See ECF No. 1. On September 20, 2019, Magistrate Judge Mansfield issued an order granting the Owners leave to file a third-party complaint, ECF No. 29, and one week later the Owners filed a Third-Party Complaint against Emser, ECF No. 30. The parties then entered into mediation a month later. On November 20, 2020, Emser filed a motion for leave to...
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