Coastal & Native Plant v. Engineered Textile

• Decision Date: 28 March 2001
• Docket Number: No. 3:98-CV-386/LAC.,3:98-CV-386/LAC.
• Citation: 139 F.Supp.2d 1326
• Parties: COASTAL & NATIVE PLANT SPECIALTIES, INC., Plaintiff, v. ENGINEERED TEXTILE PRODUCTS, INC., Defendant. Engineered Textile Products, Inc., Third-Party Plaintiff, v. Occidental Chemical Corporation, Third-Party Defendant.
• Court: U.S. District Court — Northern District of Florida

139 F.Supp.2d 1326

COASTAL & NATIVE PLANT SPECIALTIES, INC., Plaintiff, v. ENGINEERED TEXTILE PRODUCTS, INC., Defendant.

Engineered Textile Products, Inc., Third-Party Plaintiff, v. Occidental Chemical Corporation, Third-Party Defendant.

No. 3:98-CV-386/LAC.

United States District Court, N.D. Florida, Pensacola Division.

March 28, 2001.

Diane Longoria, Pensacola, FL, for Plaintiff.

Tom Jenkins, Dennis Larry, Pensacola, FL, for Defendant.

ORDER DENYING SUMMARY JUDGMENT

COLLIER, District Judge.

THIS CAUSE comes before the Court on Third-Party Defendant OCCIDENTAL CHEMICAL CORPORATION's ("OxyChem") motion for summary judgment and documents in support thereof (docs. 144-47, 154). Defendant/Third-Party Plaintiff ENGINEERED TEXTILE PRODUCTS, INC. ("ETP") timely filed a memorandum and evidentiary materials in opposition (docs. 149-51). The Court has taken summary judgment under advisement (doc. 148) and is now prepared to rule on OxyChem's motion. For the reasons stated below, the motion for summary judgment is DENIED.

I. STATEMENT OF THE CASE

The Court hereby adopts the factual and procedural background of the case as articulated in its order denying ETP's motion for summary judgment entered on January 30, 2000 (doc. 95 at 2-8), which is attached as an appendix. Only minimal attention need be given to the factual and procedural aspects of the case relevant to this Order.

ETP filed its first third-party complaint against OxyChem on January 27, 1999— seven days before the discovery deadline and twenty-seven days before motions for summary judgment were to be filed—seeking indemnification for any damages suffered as a result of Plaintiff's cause of action (docs. 46, 48, 50). Shortly thereafter, ETP filed a motion for summary judgment against Plaintiff, which was denied on January 30, 2000 (doc. 95). While this motion was pending before the Court, OxyChem filed an amended motion to reopen discovery (doc. 83). Because it was technically brought into this case after the original discovery period, OxyChem requested that it be permitted to conduct its own discovery after the adjudication of ETP's motion.

The Court granted OxyChem's motion and directed OxyChem to complete its discovery in ninety days (doc. 96). ETP then filed a second amended third-party complaint (doc. 101). After the discovery period was extended an additional sixty days (doc. 123), OxyChem filed a motion for summary judgment and documents in support thereof (docs. 144-47, 154). The Court took summary judgment under advisement (doc. 148) and Plaintiff thereafter filed a memorandum and evidentiary materials in opposition (docs. 149-51).

For purposes of ruling on OxyChem's motion, the following facts are viewed in a light most favorable to ETP.¹ ETP is an Alabama corporation incorporated in 1980, with its principal place of business in Alabama, and is in the business of industrial textile fabrication (doc. 145 ¶ 17). ETP traces its roots in the business back more than one hundred years (Id.). Between January and May of 1997, ETP sold Plaintiff COASTAL & NATIVE PLANT SPECIALTIES, INC. ("Coastal") ten polyvinyl chloride ("PVC") liners (Id. ¶ 4). The first four liners were made of 30 mil industrial grade PVC, while the last six liners were made of 35 mil fishgrade PVC (Id.). ETP ordered the material used to fabricate the first four liners from OxyChem on November 13, 1996 (Id. ¶ 5).² It received that material on November 17, 1996 (Id. ¶ 5). ETP marked OxyChem's invoice as "RECEIVED" on November 18, 1996 (Id.). ETP paid all amounts due on February 24 and 27, 1997 (Id.). ETP ordered the material used to fabricate the remaining six liners from OxyChem on October 4, 1996 (Id. ¶ 6).³ It received that material on October 11, 1996 (Id.). ETP marked OxyChem's invoice as "RECEIVED" on October 14, 1996 (Id.). ETP paid all amounts due on February 24, 1997 (Id.).

Printed in blue type at approximately 1/16th of an inch in height, the following language appears on the bottom-left, front-side of OxyChem's invoices: "Subject to terms and conditions printed on back hereof." On the back of each OxyChem invoice, under the title "OCCIDENTAL CHEMICAL CORPORATION'S INVOICE TERMS AND CONDITIONS," the following terms appear:

1. ENTIRETY OF CONTRACT: Seller's acceptance of Buyer's order and shipments made pursuant thereto are subject to and expressly conditioned upon Buyer's acceptance of the terms and conditions herein unless this transaction is subject to a previous applicable contract and signed by Seller. If there is no such contract, the terms and conditions contained herein constitute the contract covering such order and shipments and the entire understanding between the parties relating thereto, and none of Buyer's terms and conditions in acknowledging this invoice or in issuing any purchase orders, releases, shipping instructions or otherwise shall apply. Buyer shall be deemed to have assented to the provisions hereof in all respects by its acceptance of any goods shipped or by failure to give Seller written notice of objection within five business days of Buyer's receipt of this invoice. Seller shall not be bound by any change in, addition to, or waiver of any of the provisions hereof unless approved in writing by an authorized representative of Seller.

....

4. WARRANTIES: Seller's recommendations or instructions as to handling, use, or disposal of any Product, including its use alone or in combination with other products, or as to any apparatus or process or the use of any Product in connection therewith, are based upon information believed to be reliable, but Seller shall have no liability with respect thereto. SELLER'S SOLE AND EXCLUSIVE WARRANTY IS THAT ITS PRODUCT COMPLIES WITH ITS STANDARD CHEMICAL AND PHYSICAL SPECIFICATIONS, SELLER MAKES NO OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, WHETHER WITH RESPECT TO ITS RECOMMENDATIONS, INSTRUCTIONS, PRODUCT APPARATUS, PROCESS OR OTHERWISE, AND SPECIALLY DISCLAIMS ANY IMPLIED WARRANTIES, WHETHER OF MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.

....

7. CLAIMS; LIABILITY: ... As to any claim of any nature, whether in contract, tort, strict liability, patent infringement or otherwise, Seller's and its affiliates' total liability shall not exceed the purchase price of the portion of the Product in respect of which such claim is made plus any transportation charges thereon paid by Buyer. In no event shall Seller and its affiliates be liable for any indirect, consequential, special, incidental or contingent damages, costs of litigation or for loss. It is agreed and understood that the price stated for the Product is a consideration in limiting Seller's liability.

....

9. LIABILITY AND RESPONSIBILITY: Except to the extent that such is solely and directly caused by any breach of Seller's obligations hereunder, Buyer assumes full responsibility for any liability arising out of unloading, discharge, storage, handling, use and disposal of any Product or container therefor, including the use of such Product or container alone or in combination with other substances .... Buyer shall defend, indemnify and hold harmless Seller, and its affiliates, and their respective representatives and employees, from and against all losses, liabilities, damages, and expenses made against or incurred by Seller and its affiliates, and their respective representative and employees, arising out of any claim, suit or proceeding by any governmental agency or any third parties (including without limitation any employee of Buyer or member of his family) which claim, suit or proceeding alleges death, personal or economic injury or damages to any private or public property or resources caused or contributed to by the Product or container therefor if such death, injury or damage occurred subsequent to shipment of the Product, except to the extent such is solely and directly caused by the failure of the Product to meet Seller's standard physical and chemical specifications.

....

16. JURISDICTION: THE PARTIES HERETO AGREE THAT ALL OF THE PROVISIONS OF THIS AGREEMENT AND ANY QUESTIONS CONCERNING ITS INTERPRETATION AND ENFORCEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS OF THE STATE

OF NEW YORK, U.S.A. AND THE ORDERING AND DELIVERY OF PRODUCT SHALL BE DEEMED TO BE THE TRANSACTION OF BUSINESS WITHIN THE STATE OF NEW YORK FOR PURPOSES OF CONFERRING JURISDICTION UPON COURTS LOCATED WITHIN THE STATE. THE PARTIES AGREE THAT ANY LITIGATION ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT ONLY IN THE FEDERAL OR STATE COURTS IN THE STATE OF NEW YORK AND BOTH PARTIES CONSENT TO THE JURISDICTION OF SAID COURTS.

(doc. 149, Exh. 1) (first and second emphasis added, third and forth emphasis in original). This language is printed in very light-grey type at approximately 1/16th of an inch in height. Similar terms and conditions appeared on the back of all of OxyChem's invoices to ETP, including invoices predating the ones from above (doc. 145 ¶ 8).

OxyChem also provides data sheets on all of its products. Under the heading "Typical Properties," the data provided for "Dimensional Stability" states that 35 Mil PVC liners have a maximum percent change—i.e., shrinkage—of less than 3% or less than 5% (depending on the data sheet) when a small sample of it is exposed to a temperature of 212° Fahrenheit for 15 minutes (doc. 147: Lauwers Dep. at 6-10 & Exhs. 1-2). The data sheet for 30 Mil PVC states that such liners have a maximum percent change, in each direction, of 5% or less than 3% (depending on the data sheet) when a small sample is exposed to the same conditions (Id. at 12 & Exhs. 4-5; doc. 146: Taylor Decl. at Exh. 5). Language at the bottom of the front and back page of the data sheets for both 30 and 35 Mil PVC liners states: "This information is not intended to be all-inclusive as the manner and conditions of use, handling, storage and other factors may involve other or additional safety or performance considerations." (doc....