Certain-Teed Products Corp. v. Goslee Roofing & Sheet Metal, Inc.

• Decision Date: 02 June 1975
• Docket Number: No. 836,CERTAIN-TEED,836
• Citation: 26 Md.App. 452,339 A.2d 302
• Parties: , 18 UCC Rep.Serv. 80 PRODUCTS CORPORATION et al. v. GOSLEE ROOFING & SHEET METAL, INC.
• Court: Court of Special Appeals of Maryland

Page 452

26 Md.App. 452

339 A.2d 302, 18 UCC Rep.Serv. 80

CERTAIN-TEED PRODUCTS CORPORATION et al. v. GOSLEE ROOFING & SHEET METAL, INC.

No. 836.

Court of Special Appeals of Maryland.

June 2, 1975.

Certiorari Denied Sept. 8, 1975.

Donald E. Sharpe and Edward S. Digges, Jr., Baltimore, with whom were Piper & Marbury, Baltimore, on the brief, for appellant-cross-appellee, Certain-Teed Products Corporation.

J. Thomas Caskey and James P. Garland, with whom were Semmes, Bowen & Semmes, Baltimore, on the brief, for appellant-cross-appellee, The Dow Chemical Co.

Victor H. Laws, Salisbury, and George J. Goldsborough, Jr., Easton, for appellee, cross-appellant, Goslee Roofing & Sheet Metal, Inc.

Argued before THOMPSON, DAVIDSON and MASON, JJ.

THOMPSON, Judge.

On May 21, 1970, Goslee Roofing & Sheet Metal, Inc. (Goslee), seeking to recover damages resulting from its reroofing of Chesapeake College, brought an action in the Circuit Court for Queen Anne's County against Certain-Teed Products Corporation (Certain-Teed), the Dow Chemical Corporation (Dow), Charles E. Brohawn & Bros., Inc. (Brohawn) and McLeod, Ferrara & Ensign, A.I.A. (McLeod). Goslee's cause of action was based primarily on negligence in manufacture of and breach of warranty in connection with the roofing materials originally sold to it by Certain-Teed and Dow and negligence in construction and design against Brohawn (the general contractor) and McLeod (the architect).

On October 28, 1970, Certain-Teed filed a counterclaim against Goslee for the unpaid purchase price of the products sold to Goslee for the purpose of re-roofing Chesapeake College. The case was subsequently removed to the Circuit Court for Talbot County on May 26, 1971.

Trial commenced on January 3, 1973 and concluded on January 12, 1973. Goslee dismissed its case against McLeod prior to trial. On March 5, 1974 Judge Harry E. Clark found against Certain-Teed on the issue of warranty and against Dow on the issues of warranty and negligence. Judgments were entered in favor of Goslee against Brohawn for $3,207.19 and against Certain-Teed and Dow for $73,204.34. A judgment was also entered in favor of Certain-Teed on its counterclaim against Goslee. Goslee has not appealed that judgment nor has Brohawn appealed the judgment entered against it.

Certain-Teed claims that any warranty created by its sale to Goslee was not breached, that even if a breach occurred it was not the proximate cause of the damages suffered by Goslee, and that the trial court erred in its compilation of damages. Dow claims that the trial court erred in refusing to allow it to call an expert witness, that Goslee was under no legal obligation to re-roof and thus should not have been awarded damages for doing so and that the lower court erred in its compilation of damages. In its cross-appeal Goslee claims that certain items should have been included in its damage award against Certain-Teed and Dow.

FACTS

In the spring of 1967, Chesapeake Community College awarded a contract to build the college's first five buildings to Brohawn, the general contractor. In September 1967, Brohawn accepted the proposal of Goslee, a roofing and sheet metal contractor, to provide built-up roofs for all five of said buildings at and for the sum of $64,000.00. This sub-contract required Goslee to furnish all labor, materials and equipment necessary to build and complete the roofs in accordance with the owner's plans, specifications and addenda, if any, as prepared by McLeod. The original plans and specifications for the roofs called for a build-up roof to be installed over the concrete slab roof deck. The roof was to be comprised of a layer of insulation to be attached to the roof deck and a conventional four-ply twenty-year bonded type membrane roofing system with an aggregate surface to be attached to said insulation.

In October 1967, Billy N. Beauchamp, Certain-Teed's territorial manager, contacted David B. Webster, Goslee's General Manager and Estimator, in an attempt to sell Certain-Teed's Dual 80 GSI roof system, which involves the use of two plies of forty pound asphalt coated felt, instead of the four-ply contained in the specifications described above. During the same period one Joseph Baxter, a salesman for G. & W. H. Corson, Co., the exclusive distributor of Dow's products in the Mid-Atlantic States, attempted to sell Dow's Styrofoam RM brand plastic foam as the substrate and insulation for the roofs. Webster testified that he told Beauchamp and Baxter that if they could convince the architects to substitute their products for those in the specifications, Goslee would use them on the Chesapeake College project. Thereafter a meeting was held in McLeod's offices in Washington, D. C., between Robert S. Tomlinson, McLeod's architect-in-charge of the Chesapeake College project, a Mr. Vercoe, a representative of Corson, and Billy N. Beauchamp.

The trial court aptly summed up the testimony reltive to this meeting:

'From the depositions of Vercoe and Beauchamp, which were admitted into evidence, it appears they attended this meeting for the sole purpose of persuading McLeod to approve the use of Certain-Teed's Dual 80 GSI roofing system and Styrofoam RM for subject job. Vercoe reported that Styrofoam RM was as good an insulator and foundation or substrate for an asphalt coated membrane roof system as any on the market and had the added advantage of being more water resistant, thus making it slower to deteriorate with the passage of time and exposure to moisture. Beauchamp reported that since Certain-Teed's Dual 80 GSI roofing system was only a two-ply system, it would be cheaper for the roofer to apply, since it would take less time and labor to apply and thus would enable the general contractor to start inside work sooner than if the conventional four-ply system was used (a coated base sheet with three plies of fifteen pound felt) which Certain-Teed also manufactured. Each deponent admitted that this was the first time he had proposed the use of Certain-Teed's Dual 80 GSI roofing system in conjunction with Styrofoam RM.'

Mr. Tomlinson testified as to that meeting as follows:

'Q. Can you or not give us the substance of that?

A. Well, first we had not used the Dual 80 roofing or its type recently and we were most concerned with the adequacy of the type of material for a four ply built-up roof, and this was our first concern. Secondly there was a cause for concern because of the compatibility of the insulation because the manufacturer's literature seemed to caution against this type of use.'

'A. As I say, primarily we were concerned with the results of this but also concerned with the compatibility. We were given the names of two or three jobs where Certain-Teed was used. I did some telephone checking on that. I had some notes but I have since destroyed them, and I can't give any particular reference, but we were concerned about other situations elsewhere and did check those. We found nothing derogatory and nothing to indicate we should be alerted to any problem and, on that basis found no objection to Certain-Teed. We asked Dow to certify that they had no objection to using their products of Certain-Teed and, with that letter, we proceeded to approve it.'

'Q. Mr. Tomlinson, was or did the specifications for this job include the requirement that the built-up roof be bondable, that is, that the owner be eligible to obtain a bond should it elect to do so?

A. That's correct.

Q. And the bond was to have been what type of bond in terms of nature and duration?

A. Twenty years on the roofs which were not flashed, which is common in the trade, furnished by the roofing manufacturer, the manufacturer of the roofing service products.

Q. In this case that would have been which firm?

A. Certain-Teed.

Q. Was the bondability feature discussed with the Certain-Teed representative at the time?

A. I am quite sure it was because this was a cause of concern in evidencing that this substitution would be equal to that which was specified in having the 20 year life.

Q. Was it one of your objectives in making an investigation and inquiry into Dual 80 that Certain-Teed be willing to bond any material in this application on a 20 year bond specification?

A. I am quite sure it was. I can't remember exact conversations but this was the tone of all concerned, durability and, therefore, bondability.'

The architect did approve the use of Certain-Teed's and Dow's materials; Goslee thereupon purchased and used both products. Goslee began roofing the library at Chesapeake College on April 15, 1968, the Science Building on June 17, 1968, the Humanities Building on August 22, 1968, the Gymnasium on October 8, 1968 and the College Center on November 19, 1968. Each building's roof took approximately one month to complete.

On March 13, 1969, Goslee was notified of leaks in the roofs of the Library, Science and Hjmanities Buildings. Goslee inspected these roofs and found a number of splits in the membrane along the longitudinal joints of the substrate. In June 1969, due to pressure from the owner and general contractor, Goslee attempted to correct the leaks by removing the loose slag in the areas where the splitting had occurred and flooding those areas with asphalt. Less than 3 months after this action, however, the leaks reappeared. Goslee, on the continued urging of Chesapeake College and Brohawn concerning corrective action, sought the advice of Certain-Teed personnel. Goslee then re-roofed the three buildings in accordance with Certain-Teed's advice during the fall of 1969. In the meantime Goslee received complaints that the roofs of the Gymnasium and College Center Building were leaking due to the same type of splitting in the membrane as had been encountered in the other three buildings. On May 5, 1970, Tomlinson requested Brohawn to take immediate steps to replace the roofs of the Gymnasium and College Center. This letter failed to achieve the desired...