Cajun Elec. Power Co-op., Inc. v. Owens-Corning Fiberglass Corp.

• Decision Date: 16 May 1988
• Docket Number: OWENS-CORNING,No. 87-CA-815,87-CA-815
• Citation: 528 So.2d 716
• Parties: CAJUN ELECTRIC POWER COOPERATIVE, INC. v.FIBERGLASS CORPORATION. 528 So.2d 716
• Court: Court of Appeal of Louisiana — District of US

Page 716

528 So.2d 716

CAJUN ELECTRIC POWER COOPERATIVE, INC. v.OWENS-CORNING FIBERGLASS CORPORATION.

No. 87-CA-815.

528 So.2d 716

Court of Appeal of Louisiana Fifth Circuit.

May 16, 1988.

Writ Denied Oct. 7, 1988.

Frederick R. Bott, New Orleans, for defendant-appellee-cross-appellant.

Don M. Richard, Michael J. Furman, New Orleans, for third-party-plaintiff-appellant.

Before CHEHARDY, BOWES and WICKER, JJ.

WICKER, Judge.

This appeal arises from a suit filed on behalf of Cajun Electric Power Cooperative, Inc.(Cajun) against Owens-Corning Fiberglass Corporation(Owens) for failure to provide Cajun with a properly functioning circulating water pipe at its power plant in New Roads, Louisiana known as Big Cajun Number Two.Owens subsequently settled the Cajun claim.However, Owens also filed a third party claim ¹ against Boh Brothers Construction Co., Inc.(Boh).The trial court² rendered judgment in favor of Owens in the amount of $239,646.10, which was 10% of the stipulated damages.³Owens now appeals and Boh has answered the appeal.We revise and as revised, affirm.

On January 1, 1975 Cajun entered into a contract with the joint venture engineers consisting of Bovay, Burns and Roe.The engineers had the contract to design and manage the construction of Units One and Two for Big Cajun Number Two.

After approval by the Rural Electricification Association a loan was made to finance the project.The plans and specifications prepared by the joint venture engineers were issued for competitive bidding.Boh and Owens were awarded contracts.

Certain provisions of the contract between Owens and Cajun (Contract G-210) dated January 25, 1977 called for Owens to design, furnish, and instruct the installing contractor with regard to the fiberglass reinforced plastic (FRP) pipes for Units One and Two at Big Cajun Number Two.Each unit had two lines of pipe, for a total of four lines referred to as A, B, C and D.A second contract (G-291) was executed between Cajun and Boh on September 26, 1977.Contract G-291 provided to Boh the contract for installation of the pipe.

On or about January 4, 1980 the pipeline was placed into operation.At that time several cracks and leaks were discovered.Cajun and the joint venture engineers decided to repair and strengthen all joints in the existing system.Cajun filed suit against Owens on December 18, 1980 for the cost of the repair.Owens in turn filed third party demands.

Owens now appeals and specifies the following errors:

1.That the trial court erred in finding that Boh, although a solidary co-obligor with Owens for the stipulated damages sustained by Cajun, was liable for only 10% of the damages instead of a 50% virile share, and

2.That the trial court erred in awarding interest from July 11, 1983 instead of from September 4, 1981, the date Owens made judicial demand upon Boh.

Boh has answered the appeal and seeks to have the trial court's judgment reversed or in the alternative to have the judgment revised to reflect that Boh is only liable for five percent of the damages.

MANIFEST ERROR:

The court heard conflicting testimony regarding Boh's alleged negligence.William C. Tolbert(Tolbert), William Todd(Todd) and John S. Wise(Wise) agreed that Boh's performance did not cause the joint failures.Winston Renaud emphasized the problem with the design in the transition area making it difficult for a bond to be achieved despite the care taken by Boh.Conrad Wall(Wall), a pipefitter employed by Boh during the repair, noted that there was a tremendous amount of debonding where the pipe took a 45 degree bend as well as toward the center of each joint from that point.Wise, employed by Bovay as a civil and structural engineer, testified that he observed debonding or failure of the initial layups but attributed the failure to the pipe and not to Boh's work.In particular he noted that the transitions were undersized and as a result there was not much surface area for the layup to adhere to.

Although the pipe thickness was supposed to be 3/4 inches thick, some places were as little as 3/8 inches thick.Therefore there was not as much wall area for the layup to adhere to.

Wise believed that the pipe had a design problem. 80% of the joints that debonded were caused as a result of a problem in the transition area.Due to the thinness and the degree of the angle there was difficulty obtaining a bond.Some of the joints in the transition had cracks which went though and though.He was able to place his knife blade in three joints in the transition area.

Other testimony set out the following: David B. Puckett, Sr., (Puckett) testified that he traveled to the job site in the Fall of 1979 as marketing sales manager for pipe.At that time the job was essentially 95% complete.

Around January 4, 1980he was told that pipelines C and D were leaking.He walked though those lines in January 1980 prior to the repair.He noticed that a few of the layups were not bonded and many showed signs of being unbonded.Approximately 25 to 50% showed either partial bond or no bond at all.He checked randomly for bonding by tapping the area with a metal rod.If a hollow sound was made then the layup was debonded.

Puckett stated that "If a layup is not bonded it won't work and it won't do its function."Kevin Thomas Kerner(Kerner), an Owens employee in the field of civil engineering, stated that the intended use of the circulating water pipes was to circulate water from one point of the system to another without leaking.Although some of the factory-made layups failed as well as the Boh layups, Puckett noted that approximately 30 to 40 or 30 to 45 of the 141 field layup joints made by Boh failed, i.e. 21% to 32%.

Tim Naccarato(Naccarato), a field observer/technician, testified that if the pipe wall surface had not been prepared by sandblasting or grinding prior to making a hand layup there would be no bond.It was "absolutely essential" that the surface be properly prepared prior to making the layup in order to get a bond.

In January, 1980he had the responsibility of conducting an investigation as to why the debonding occurred.He inspected all four lines.

He saw debonded areas at the transition area and could actually see the separation between the 26 ply layup and the 45 degree bevel at the transition by placing his knife blade in the area.He could see leaks from the crack in the layup.

"Almost all of [the last three ply matt overlay that came out onto the pipe wall] were on unbonded pipe wall."These were placed on smooth pipe wall.He saw loose edges and a leak underneath the three ply matt.He saw no bond and an unprepared surface.Debonding was typical.

Naccarato felt that Boh's work was poor because there was no indication of a sandblasted or prepared surface.

Mark Greenwood(Greenwood), a design engineer for Owens, testified that he designed the Big Cajun # 2 pipe.He initially felt that the joint would be as strong as the pipe.However, his opinion changed.As of the date of trial he did not feel that the joint as designed was as strong as the pipe.

Greenwood inspected the C and D lines in January, 1980.He observed leakage from both field joints as well as factory joints.

He was accepted as an expert in the field of civil engineering and F.R.P. pipe design.He stated that joint problems "resulted from ...two things or a combination of, and that would be either improper workmanship, or loads in excess of those anticipated for this service, or a combination of the two."

Greenwood explained that if a joint failed due to poor workmanship this would be basically due to debonding which would appear as a separation of the layup that was placed in the pipe.With regard to failure due to loading that was unanticipated there would also be a debonding problem close to the transition in some areas. 80% of the joints exhibited problems of a debonding nature.

Frank J. Heger(Heger), an expert in the field of engineering with limited expertise in geotechnics, testified that the joints failed due to unanticipated loads or because they were not properly made so as to achieve bonding, or some combination of these two effects.

Furthermore, the joints were not as strong as the pipe.Heger felt that due to the unstable soil conditions at the site the pipe should have been a flexible system rather than a rigid one as designed.

Billy W. Williams, Owens' Vice-President and General Manager of the Non-Corrosive Products Division in 1980, stated that he attended meetings regarding the repair of the pipe.Owens' assessment of the workmanship at the jobsite led to Owens' lack of confidence in all of the joints.

Wall testified that he worked on 35 to 45 joints.He observed that 95% of these had places that were debonded or loose.Upon removing some of the 26 ply layups in the C and D lines he noticed that the pipe wall appeared smooth rather than being completely "ground or sandblasted."Some areas in the joints had not been sandblasted at all.

Robert E. Sullivan testified that he was employed by Boh during the repair phase.He noticed that some of the 26 ply layups were not bonded at all so that a crack could be seen.Of the 40 joints he worked on he estimated that 95% had no bond.

Kerner testified that he demonstrated to Boh's pipefitters as well as to Bovay personnel how to roll out the layup on the pipe so as to join the sections.He was pleased with Boh's installation of the first two joints.However, there was a difference in the quality of workmanship by Boh as the job progressed.On his visit of October 19, 1978he found that some of Boh's fabricated joints had unacceptable defects.

As the job progressed he saw more defects which were not addressed by Boh.Boh was capable of making good joints since Kerner found satisfactory joints in November of 1978.

He testified that it was possible to visually detect whether or not the surface of the pipe wall had been properly prepared...