Georgia-Pacific Consumer Prods. LP v. Zurich Am. Ins. Co.
| Decision Date | 16 December 2016 |
| Docket Number | CIVIL ACTION 15-0342-WS-B |
| Parties | GEORGIA-PACIFIC CONSUMER PRODUCTS LP, etc., et al., Plaintiffs, v. ZURICH AMERICAN INSURANCE COMPANY, etc., et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
The remaining parties have filed a total of seven motions for summary judgment. Briefing (including on the associated motions to strike) exceeds 900 pages. The Court therefore will address the motions piecemeal. This order addresses the threshold issue of what documents constitute the contract between the entity plaintiff ("the plaintiff")1 and defendant S&S Sprinkler Co. ("S&S").2 Familiarity with the underlying facts and issues is assumed.
Summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are nogenuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id.; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden ..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) ().
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant ...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
There is no burden on the Court to identify unreferenced evidence supporting a party's position.3 Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment," Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.
The decedent was on site in connection with an April 2014 purchase order to install a sprinkler system ("the Purchase Order"). (Doc. 348-7 at 2-4). The parties agree that the Purchase Order forms at least part of the relevant contractual relationship between the plaintiff and S&S. No indemnity provision or insurance requirement appears within the four corners of the Purchase Order; the provisions on which the plaintiffs rely are contained within a Master Service Agreement executed in December 2008 ("the 2008 MSA"). (Doc. 182 at 6-8).
The Purchase Order addresses terms and conditions in several ways. First, the Purchase Order includes the following provision on its first page:
Terms and Conditions: Unless expressly subject to a written agreement signed by both Buyer and Supplier, Supplier acknowledges that it has reviewed Buyer's "Terms and Conditions of Purchase", available at Buyer's website ... (the "GP Terms and Conditions") and that purchases of goods and/or services by GP are subject to the GP Terms and Conditions. Buyer reserves the right to modify the GP Terms and Conditions at any time without prior notice and the current version shall supersede all prior versions upon posting to Buyer's website.
(Doc. 348-7 at 2). Second, the Purchase Order contains the following provision on its second page:
The terms and conditions of Georgia-Pacific's Form 7141 shall supercede [sic] those herein and apply as the terms and conditions for this purchase order.
(Id. at 3). Third, the Purchase Order on its third page repeats verbatim the quoted provision appearing on its first page. (Id. at 4). Finally, the Purchase Order itself articulates several terms and conditions, addressing such matters as payment terms, emergency shipments, right to audit and compliance with governmental safety codes. (Id. at 2-3).
In its order denying the plaintiffs' previous motion for partial summary judgment as to Aspen, the Court tentatively concluded that construction of the Purchase Order is governed by Alabama law, based on evidence the Purchase Order was entered in Alabama for work to be performed in Alabama. (Doc. 349 at 4-5). "Alabama follows the traditional view that a contract is governed as to its nature, obligation, and validity by the law of the place where it was made, unless the parties intend the law of some other place to govern, or unless it is to be wholly performed in some other place." Ex parte Owen, 437 So. 2d 476, 481 (Ala. 1983). No party has disputed that Alabama law governs construction of the Purchase Order; on the contrary, S&S acknowledges that "[t]he P.O. was prepared by GP in Alabama, sent to S&S in Alabama for work to be performed in Alabama." (Doc. 361 at 15). The Court therefore continues to employ Alabama law in construing the Purchase Order.
In construing a contract, the "threshold issue" is "whether the contract is ambiguous." Certain Underwriters at Lloyd's, London v. Southern Natural Gas Co., 142 So. 3d 436, 453 (Ala. 2013) (internal quotes omitted). "The issue whether a contract is ambiguous or unambiguous is a question of law for a court to decide." American Resources Insurance Co. v. H & H Stephens Construction, Inc., 939 So. 2d 868, 873 (Ala. 2006) (internal quotes omitted). "If the trial court determines that there is no ambiguity, it must determine the force and effect of the terms of the contract as a matter of law." Id. (internal quotes omitted). "A contractual provision is ambiguous if it is reasonably susceptible of more than one meaning." Doster Construction Co. v. Marathon Electrical Contractors, Inc., 32 So. 3d 1277, 1283 (Ala. 2009) (internal quotes omitted). Conversely, "terms are unambiguous [when they are] susceptible of only one reasonable meaning." Id. (internal quotes omitted).
The plaintiffs and the insurer defendants focus their attention on the second provision, which mentions "Form 7141." S&S, however, argues that this provision never comes into play. Its argument proceeds as follows: To resolve an ambiguity between two seemingly inconsistent terms, a court must first attempt to reconcile the provisions. If that effort fails, the court must employ Alabama rules of construction, including the rule that the first stated provision controls over a later, inconsistent provision. Finally, if other rules of construction do not resolve the ambiguity, the court is to resolve the ambiguity against the drafter. (Doc. 361 at 15-17; Doc. 434 at 6-11). S&S applies its argument as follows.
The first and third provisions regarding terms and conditions need not be reconciled, since they are identical. S&S argues that the second provision should be reconciled with the others by requiring that the "Form 7141" referenced in the second provision be "signed by both Buyer and Supplier" as required by the first and third provisions, failing which the online terms and conditions will apply asstated in those provisions. S&S asserts that neither the 2008 MSA nor the 2011 amendment to the 2008 MSA (which extended its reach to all Georgia-Pacific subsidiaries, including the plaintiff) was signed by the plaintiff. S&S concludes that, even if "Form 7141" refers to the 2008 MSA, that MSA is not a written agreement signed by the plaintiff (the buyer under the Purchase Order) and S&S, with the result that the online terms and conditions control rather than those expressed in the 2008 MSA.4
Should the Court reject that analysis and not require that the Form 7141 be signed by the plaintiff, S&S argues that the ambiguity introduced by the presence of two conflicting provisions regarding terms and conditions should be resolved in favor of the first provision, since it appears first in the Purchase Order, with the...
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