Lbl Skysystems (Usa), Inc. v. Apg-America, Inc.
| Decision Date | 25 May 2004 |
| Docket Number | No. Civ.A. 02-5379.,Civ.A. 02-5379. |
| Parties | LBL SKYSYSTEMS (USA), INC. Plaintiff/Defendant on Counterclaim, v. APG-AMERICA, INC., and Sentry Select Insurance Company Defendants, APG-America, Inc. Plaintiff on Counterclaim, v. XL Specialty Insurance Company and NAC Reinsurance Corporation Defendants on Counterclaim. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Michael S. Saltzman, Fineman Bach, PC, Philadelphia, PA, H. Hugh Mcconnell, James F. Harrington, Siegfried Rivera Lerner Delatorre & Sobel PA, Stuart H. Sobel, Siegfried, Rivera, Lerner, et al., Coral Gables, FL, for Plaintiff.
Daniel J. Bender, David Hilton Wise, Lewis & Roberts PLLC, Fairfax, VA, Thomas M. Guinan, Howland Hess Guinan & Torpey, Huntingdon Vly, PA, Thomas B. Salzer, Glassboro, NJ, Basil A. Disipio, Lavin Coleman O'Neil Ricci Finarelli & Gray, Philadelphia, PA, Gary Yale Wirth, Jason S. Samuels, Kevin Michael Gary, Michael S. Torre, Robert Mark Wasko, Sean P. Kelley, Torre Lentz Gamell Gary & Rittmaster LLP, Jericho, NY, for Defendants.
This case arises out of a dispute between two contractors, LBL Skysystems (USA) Inc. ("LBL") and APG-America, Inc. ("APG"), and APG's surety, Sentry Select Insurance Company ("Sentry Select").1 LBL is a New York corporation with its principal place of business in Boisdes-Filion, Quebec, Canada. Complaint ¶ 1. APG is a New Jersey corporation with its principal place of business in New Jersey. Id. at ¶ 2. Sentry Select is a an Illinois corporation with its principal place of business in Illinois. Id. at ¶ 3.
On December 22, 1999, LBL entered into a written contract ("Prime Contract") with U.S. Airways, Inc. ("USAir") for the provision of construction services pertaining to the curtainwall, metal panels, skylights and louvers at the project known as the Philadelphia International Airport, International Terminal One ("Philadelphia Airport Project"). Id. ¶ 7.
On December 21, 1999, LBL entered into a written subcontract with APG for the designing, engineering, fabrication and installation of a steel metal panel wall system at the Philadelphia Airport Project in the amount of $9,919,390 ("Subcontract"). Complaint at ¶ 8; APG-America, Inc.'s Opposition to LBL Skysystems (USA), Inc.'s Motion for Partial Summary Judgment at 6. As part of its obligations under the Subcontract, APG provided performance and payment bonds. On December 10, 1999, APG as principal, and Sentry Select, as surety, furnished bonds numbered 7070-10219 and 0707-10220 ("Performance Bonds") for the benefit and protection of LBL as obligee. Id. at ¶ 9.
The dispute arose over the scope of APG's work under the Subcontract. LBL's Mot. For Part. Summ. Judg. on LBL's Compl. and APG's Counterclaim and Incorp. Mem. of Law at 3; APG-America, Inc.'s Opposition to LBL Skysystems (USA), Inc.'s Motion for Partial Summary Judgment at 1. The parties agree that under the Subcontract APG was to provide the insulated metal panels for all areas of the Philadelphia Airport Project. The parties disagree as to whether, and in what areas of the airport, APG was obligated to provide what LBL describes as "backup support" steel and what APG describes as "structural steel" to support the insulated metal panels. LBL's Mot. For Part. Summ. Judg. on LBL's Compl. and APG's Counterclaim and Incorp. Mem. of Law at 3; APG-America, Inc.'s Opposition to LBL Skysystems (USA), Inc.'s Motion for Partial Summary Judgment at 6.
On April 4, 2002, two years after the Subcontract was signed and after work on the Philadelphia Airport Project had begun, APG sent LBL a letter stating that structural steel for certain areas in the terminal were not within the scope of the Subcontract and that APG would not supply and install that steel without additional compensation. LBL's Mot. For Part. Summ. Judg. Against Sentry Select Ins. Co. and Incorp. Mem. of Law at 3; APG-America, Inc.'s Opposition to LBL Skysystems (USA), Inc.'s Motion for Partial Summary Judgment at 11. After several months of discussion, on June 27, 2002, LBL terminated APG's right to complete the Subcontract. LBL's Mot. For Part. Summ. Judg. Against Sentry Select Ins. Co. and Incorp. Mem. of Law at 4; APG-America, Inc.'s Opposition to LBL Skysystems (USA), Inc.'s Motion for Partial Summary Judgment at 12
Shortly after the June 27, 2002 termination, LBL called on Sentry Select to complete performance under the Performance Bonds. LBL's Mot. For Part. Summ. Judg. Against Sentry Select Ins. Co. and Incorp. Mem. of Law at 4; APG-America, Inc.'s Opposition to LBL Skysystems (USA), Inc.'s Motion for Partial Summary Judgment at 12. Sentry Select responded by questioning the specific basis for termination. LBL's Mot. For Part. Summ. Judg. Against Sentry Select Ins. Co. and Incorp. Mem. of Law at 8. Thereafter, after several months of investigation, Sentry Select elected to deny liability under the Performance Bonds. Id. at 9.
On August 29, 2002, LBL filed the present Amended Complaint against APG and Sentry Select for damages claiming that APG breached the Subcontract and Sentry Select breached the Performance Bonds by refusing to complete the full scope of APG's work. LBL's Amended Complaint.
APG filed several counterclaims seeking damages from LBL and its sureties, XL Specialty Insurance Company and NAC Reinsurance Corporation, contending inter alia that APG was not in breach, that it was wrongfully terminated for cause, and that the manner in which LBL terminated the Subcontract was procedurally improper. APG's Amended Answer, Affirmative Defenses and Counterclaim to Plaintiff's Amended Complaint.
On November 28, 2003, LBL filed a Motion for Partial Summary Judgment on LBL's Complaint and APG's Counterclaim and Incorporated Memorandum of Law (Docket No. 78).
On December 2, 2003, LBL filed a Motion for Partial Summary Judgment Against Sentry Select Insurance Company and Incorporated Memorandum of law (Docket No. 79).
On January 30, 2004, APG filed a Motion for Partial Summary Judgment Against LBL Skysystems (USA) Inc. (Docket No. 94).
On January 30, 2004, Sentry Select filed a Motion for Partial Summary Judgment Against Plaintiff LBL Skysystems (USA) Inc. Dismissing Plaintiff's Claims Against Defendants for Damages for "Lost Settlement Opportunity" (Docket No. 85).
This Memorandum addresses these four partial summary judgment motions. For the reasons set forth below, the Court denies LBL's Motion for Partial Summary Judgment on LBL's Complaint and APG's Counterclaim, denies LBL's Motion for Partial Summary Judgment Against Sentry Select Insurance Company, grants in part and denies in part APG-America, Inc.'s Motion for Partial Summary Judgment Against LBL Skysystems (USA) Inc. and grants Sentry Select Insurance Company's Motion for Partial Summary Judgment Against Plaintiff LBL Skysystems (USA) Inc. Dismissing Plaintiff's Claims Against Defendants for Damages for "Lost Settlement Opportunity".
"[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[,]" summary judgment should be granted. Fed.R.Civ.P. 56(c). The Supreme Court describes the summary judgment determination as "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
A Court may grant summary judgment if the non-moving party fails to make a factual showing "sufficient to establish an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In making this determination, the non-moving party is entitled to all reasonable inferences. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986). A court may not, however, make credibility determinations or weight the evidence in making its determination. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
LBL has moved for partial summary judgment on its claims against APG and on APG's counterclaims. Plaintiff argues that the Court should rule as a matter of law: (1) APG's interpretation of the scope of its work under the Subcontract is incorrect; (2) APG breached the Subcontract by refusing to complete its work; (3) LBL's termination of APG was both substantively and procedurally proper; and (4) LBL is entitled to contract damages in the amount of, at least, $2,945,345. These issues are at the heart of the dispute between LBL and APG. APG challenges each of them and offers in its Opposition evidence revealing genuine disputes of material fact exist as to each of LBL's assertions. See APG-America, Inc.'s Opposition to LBL Skysystems (USA), Inc.'s Motion for Partial Summary Judgment (docket no. 89, filed 01/30/04). Therefore, the Court will not grant summary judgment on LBL's claims against APG.
LBL has also moved for summary judgment on APG's counterclaims. In APG America, Inc.'s, Answer, Affirmative Defense and Counterclaim to Plaintiff's Amended Complaint, APG asserted seven counterclaims: Count I seeks to recover the unpaid balance of the Subcontract; Count II seeks the compensation for work APG undertook that it claims was outside the Subcontract; Count III, based on the premise that LBL failed to pay the contract balance, seeks statutory interest and penalties pursuant to the Contractor and Subcontractor Payment Act;2...
To continue reading
Request your trial
-
In re Mushroom Transp. Co., Inc.
...Bonding & Ins. Co. v. Johnston & Harder, Inc., 343 Pa. 270, 280, 22 A.2d 709 (1941); accord LBL Skysystems (USA), Inc. v. APG-America, Inc., 319 F.Supp.2d 515, 525 (E.D.Pa.2004). Similarly, for breach of fiduciary duty, Pennsylvania does not permit an award of damages that are merely specul......
- Kreider v. Wetzel
-
Heeter v. Honeywell Int'l, Inc.
...is "[t]he one significant difference" between the resolution of Rule 12(c) and Rule 56 motions); LBL Skysystems (USA), Inc. v. APG–Am., Inc., 319 F.Supp.2d 515, 525 (E.D.Pa.2004) ("The standards for a judgment as a matter of law under Rule 50(b) mirrors the standard for summary judgment und......
-
Canters Deli Las Vegas, LLC v. FreedomPay, Inc.
...collateral losses, such as expenses incurred or gains prevented which result from the breach.’ " LBL Skysystems (USA), Inc. v. APG-America, Inc., 319 F. Supp. 2d 515, 523 (E.D. Pa. 2004) (quoting McDermott v. Party City Corp., 11 F. Supp. 2d 612, 624 (E.D. Pa. 1998) ). As explained by the U......