Pinkert v. Olivieri, Civil Action No. 99-380-SLR (D. Del. 5/24/2001)
| Decision Date | 24 May 2001 |
| Docket Number | Civil Action No. 99-380-SLR. |
| Court | U.S. District Court — District of Delaware |
| Parties | MICHAEL EMS. PINKERT and ELEANOR A. PINKERT, Plaintiffs, v. JOHN J. OLIVIERI, P.A., BROSNAHAN BUILDERS, INC., KEVIN BROSNAHAN and LINDA BROSNAHAN, Defendants and Third-Party Plaintiffs, v. REEF INDUSTRIES, INC., FACILITIES RESTORATION SUPPLY, INC. and PRESERVATION & PROTECTION SYSTEMS, INC., Third-Party Defendants, v. OCEAN DESIGNS, OCEAN DESIGNS LLC and PAUL ROUCHARD D/B/A OCEAN DESIGNS, INC.; C. JOSEPH COUCHMAN TILE INC.; DOUG GRIFFITH DRYWALL; W.M. PLUMBING & HEATING, INC. A/K/A and/or D/B/A WM PLUMBING & HEATING, INC.; and ADVANCE FIBERGLASS TECHNOLOGIES, LLC., Additional Third-Party Defendants. |
Daniel B. Rath, Esquire of Klett, Rooney, Lieber & Schorling, P.C., Wilmington, Delaware. Counsel for Plaintiffs. Of Counsel: Michael A. Gatje, Esquire of Wickwire Gavin, P.C., Vienna, Virginia.
Adam Balick, Esquire of Balick & Balick, Wilmington, Delaware. Counsel for Defendant and Third-Party Plaintiff John J. Olivieri, P.A.
Neal C. Belgam, Esquire of Blank, Rome, Comisky & McCauley, Wilmington, Delaware. Benjamin C. Wetzel, III, Esquire and Natalie M. Ippolito, Esquire of Bailey & Wetzel, P.A., Wilmington, Delaware. Counsel for Defendants and Third-Party Plaintiffs Brosnahan Builders, Inc., Kevin Brosnahan and Linda Brosnahan.
Loreto P. Rufo, Esquire of The Bayard Firm, Wilmington, Delaware. Counsel for Third-Party Defendants Reef Industries, Inc., Facilities Restoration Supply, Inc. and Preservation & Protection Systems, Inc.
Richard W. Pell, Esquire and Jennifer L. Gioia, Esquire of Tybout, Redfearn & Pell, Wilmington, Delaware. Counsel for Additional Third-Party Defendants Ocean Designs, Ocean Designs LLC and Paul Rouchard D/B/A Ocean Designs, Inc.
Plaintiffs Michael and Eleanor Pinkert filed this action on June 16, 1999 claiming damages arising out of the construction of their home in Bethany Beach, Delaware. Plaintiffs' complaint alleges breach of contract and various counts of fraud against defendants Brosnahan Builders, Inc., Kevin Brosnahan and Linda Brosnahan ("the Brosnahan defendants"), as well as breach of contract, professional negligence and negligent misrepresentation against defendant John J. Olivieri, P.A. ("Olivieri"). (D.I. 1) On July 23, 1999, Olivieri filed a third-party complaint for indemnification and contribution against Reef Industries, Inc. ("Reef Industries") and Facilities Restoration Supply, Inc. ("Facilities Restoration"), which the court dismissed on September 29, 2000. (D.I. 115) On August 21, 2000, the court granted the Brosnahan defendants leave to file a third-party complaint against Ocean Designs, Ocean Designs LLC and Paul Rouchard ("Ocean Designs"), W.M. Plumbing & Heating, Inc., and Advance Fiberglass Technologies, LLC, alleging breach of contract and negligence, and seeking indemnity and contribution. (D.I. 101) On October 10, 2000, Ocean Designs filed a third-party complaint against Taco Metal, Inc. ("Taco Metal") for indemnification and contribution. (D.I. 123) On November 20, 2000, the Brosnahan defendants filed a third-party complaint against Reef Industries, Facilities Restoration, and Preservation & Protection Systems, Inc. ("Preservation Systems"), alleging claims of negligence, breach of the implied warranty of fitness, and indemnification and contribution. (D.I. 157) The court has jurisdiction pursuant to 28 U.S.C. § 1332.
Currently before the court are the Brosnahan defendants' motion for summary judgment on all claims against them (D.I. 124), the Brosnahan defendants' motion for partial summary judgment that plaintiffs are not entitled to recover attorney's fees (D.I. 221), the Brosnahan defendants' motion for protective order respecting pre-judgment discovery in aid of execution (D.I. 218), Reef Industries' motion for summary judgment on all claims against it (D.I. 225), Preservation Systems' motion for summary judgment on all claims against it (D.I. 228), Facilities Restoration's motion for summary judgment on all claims against it (D.I. 230), and Ocean Designs' motion for summary judgment on all claims against it. (D.I. 233) For the following reasons, the court shall grant in part and deny in part the Brosnahan defendants' motion for summary judgment on claims against them; grant the Brosnahan defendants' motions for summary judgment that plaintiffs are not entitled to attorney's fees under paragraph 16(b) of the Construction Contract and for a protective order limiting discovery; grant in part and deny in part Reef Industries' motion for summary judgment on claims against it; grant Facilities Restoration's and Preservation Systems' motions for summary judgment on claims against them; and deny Ocean Designs' motion for summary judgment on claims against it.
Plaintiffs are husband and wife who reside in McLean, Virginia. Defendant Brosnahan Builders, Inc. ("Brosnahan Builders") is a corporation organized under the laws of Delaware, with its principal place of business in Frankford, Delaware. Brosnahan Builders is primarily engaged in the business of constructing single family homes. Defendant Kevin Brosnahan is the president of Brosnahan Builders, and his wife, defendant Linda Brosnahan, is an employee of Brosnahan Builders. Kevin and Linda Brosnahan are Delaware residents and are sued in their individual capacities. Olivieri is a professional association organized under the laws of New Jersey, with its principal place of business in New Jersey. Olivieri is primarily engaged in the business of providing architectural services. (D.I. 1) Reef Industries is a Texas corporation that manufactures vapor barriers used as siding in buildings. Facilities Restoration and Preservation Systems, Pennsylvania corporations, are distributors of Reef Industries' products. (D.I. 157) Ocean Designs, a Maryland limited liability company, is a supplier and installer of aluminum railings. Taco Metal is a Florida corporation that manufactures aluminum used in railings. (D.I. 123)
In 1995, plaintiffs purchased a beachfront property (the "Property") in Bethany Beach, Delaware to construct a three-story home (the "Residence"). On October 30, 1995, plaintiffs entered into an "Architecture Contract" with Olivieri that required Olivieri to create designs and plans, review shop drawings, provide specifications to the contractor and subcontractors, and meet with contractors on-site.
On September 30, 1997, plaintiffs and Brosnahan Builders entered into a "Construction Contract" for the construction of the Residence for a price of approximately $1.5 million. (D.I. 126, Ex. B) The Construction Contract provides, in pertinent part:
3. Plans and Specifications. (a) The Home shall be constructed and completed substantially in accordance with those certain plans and specifications more particularly identified by Exhibit "A" attached hereto and incorporated herein by reference . . .1
10. Changes in Plans and Specifications. . . . (b) Owner may, at any time and from time to time prior to the Completion Date without invalidating this Agreement, require changes to the Work. Such changes may consist of additions, deletions, or modifications to the Plans and Specifications, with the Contract Sum and completion Date being adjusted accordingly. Such changes in the Work shall be authorized by written Change Order signed by Owner, Contractor and Architect, or by written Construction Change Directive signed by Owner and Architect. The Contract Sum and the Completion Date shall be changed only by Change Order.
. . .
(c) Contractor shall be under no obligation to implement any change nor shall Owner [be] under any obligation to pay for the same unless and until the same is documented by such a change order. Likewise, no change in the Work shall be authorized absent a change order for same signed by Owner and no change order shall be [in] effect unless the same is signed by Owner.
. . .
12. Payment. (a)(i) Payments to the Contractor shall be paid in accordance with Exhibit B.2
(ii) Progress invoices shall be accompanied by such documentation as Owner and/or Architect may reasonably require to verify the propriety of such request for payment. Following review of each such invoice (and its supporting documentation) by Owner, Architect and Owner's lender, and acceptance of the same, Owner shall, in exchange for appropriate mechanics' lien releases, satisfy such invoice.
. . .
16. Indemnification. (a) Owner agrees to defend, indemnify and hold Contractor harmless from and against any and all loss, cost, expense, liability, actions, and claims for injury suffered by Owner or others, including reasonable attorneys fees, or for harm caused to the Lot or the Home, due solely to inspections of the Home by Owner or Owner's invitees prior to Settlement.
(b) Contractor agrees to defend, indemnify and hold Owner harmless from and against any and all loss, cost, expense, liability, actions, and claims whatsoever (including, without limitation, reasonable attorneys fees and court costs) incurred by Owner incident to any malfeasance or nonfeasance by Contractor with respect to Contractor's responsibilities under the terms of this Agreement.
. . .
19. Governing Law. This Agreement shall be governed, construed and enforced in accordance with Delaware law.
(D.I. 126, Ex. B)
Brosnahan Builders began construction of the Residence in September 1997 and completed the project in April 1999. (D.I. 1) Brosnahan Builders subcontracted with Ocean Designs to deliver and install the exterior aluminum railings on the Residence, and with Reef Industries to deliver the vapor barrier used in the exterior siding.3 On fifteen occasions during construction, Brosnahan Builders submitted to Olivieri an AIA standard Application and Certification for Payment.4 Each was signed by Linda...
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...Realty, Inc. v. Friedman, Billings & Ramsey & Co., 2005 WL 445710, at *3 (Del. Super. Ct. Feb. 23, 2005) (quoting Pinkert v. Olivieri, 2001 WL 641737, at *5 (D. Del. 2001)). The Court has already determined that Plaintiffs' claims are independently rooted in tort law and do not arise out of......