Presbyterian Manors, Inc. v. Simplexgrinnell, LP
| Decision Date | 29 July 2011 |
| Docket Number | CIVIL ACTION No. 09-2656-KHV |
| Parties | PRESBYTERIAN MANORS, INC., Plaintiff, v. SIMPLEXGRINNELL, L.P., Defendant. |
| Court | U.S. District Court — District of Kansas |
Presbyterian Manors, Inc. brings suit against SimplexGrinnell, L.P. for breach of express warranty (Count I), negligence (Count II), negligence per se (Count III), recklessness (Count IV), breach of service agreement (Count V) and punitive damages (Count VI).1 On May 11, 2010, the Court dismissed plaintiff's claim of negligence per se. Memorandum & Order (Doc. #18). This matter is before the Court on Defendant SimplexGrinnell LP's Motion For Summary Judgment (Doc. #96) filed March 20, 2011. Defendant seeks summary judgment on Plaintiff's remaining claims for the following reasons: (1) to the extent of the subrogation interest of plaintiff s insurer, the parties' subrogation waiver agreement bars Plaintiff's claims; (2) to the extent that plaintiff seeks to recover insured damages, the anti-subrogation rule bars Plaintiff's claims; (3) Plaintiff's tort claims must fail because defendant's only duty to plaintiff was contractual; (4) plaintiff cannot recover punitive damages because it has no evidence that defendant authorized or ratified the allegedly reckless conduct of its employee; and (5) Plaintiff's discovery responses preclude it from recovering damagesfor losses that Plaintiff's insurance company has already paid. For the reasons stated below, the Court overrules defendant's motion for summary judgment.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Liberty Lobby, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial as to those dispositive matters for which it carries the burden of proof. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court views the record in a light most favorable to the party opposing the motion for summary judgment. Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). It may grant summary judgment if the nonmoving party's evidence is merely colorable or isnot significantly probative. Liberty Lobby, 477 U.S. at 250-51. In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial. Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52.
The following material facts are uncontroverted, deemed admitted or, where controverted, viewed in the light most favorable to defendant, the non-movant.
On June 11, 2002, plaintiff entered into a contract in which defendant agreed to inspect plaintiff's fire sprinkler systems and backflow preventers in accordance with an Inspection Plus Proposal which the parties signed in 2002. The Inspection Plus Proposal provided that defendant would perform quarterly and annual inspections, and that plaintiff would name defendant and its officers, employees, agents, subcontractors, suppliers and representatives as additional insureds on Plaintiff's general liability and auto liability policies. Doc. #96, Ex. A at 12. The Inspection Plus Proposal also included a "waiver of subrogation" provision in which plaintiff and all others claiming for it under the Agreement released and discharged defendant from all hazards covered by Plaintiff's insurance, "it being expressly agreed and understood that no insurance company or insurer will have any right of subrogation" against defendant. Id. The Inspection Plus Proposal stated that it would remain in effect from year to year, until terminated in writing by either party. Plaintiff still uses defendant's inspection services.
In 2006, the parties signed another Inspection Plus Proposal which only covered testing andinspection of backflow preventers. The Proposal stated in part as follows:
Entire Agreement. The Parties intend this Agreement, together with any attachments or Riders (collectively the "Agreement["]) to be the final, complete and exclusive expression of their Agreement and the terms and conditions thereof. This Agreement supersedes all prior representations, understandings or agreements between the parties, written or oral and shall constitute the sole terms and conditions of sale for all equipment and services.
On October 8, 2008, in a "Proposal and Service Agreement," defendant offered to perform an obstruction inspection of the sprinkler system of Aberdeen Village.2 Aberdeen Village is an assisted living property at 17500 West 199th Street in Olathe, Kansas, which plaintiff owned. The first page of the Proposal and Service Agreement stated the scope of work which defendant proposed to perform and the price of such service. It also stated in part as follows:
In accepting this Proposal, Customer agrees to the terms and conditions contained herein including those on the following pages of this Agreement and any attachments or riders attached hereto that contain additional terms and conditions. It is understood that these terms and conditions shall prevail over any variation in terms and conditions on any purchase order or other document that the Customer may issue. . . . ATTENTION IS DIRECTED TO THE LIMITATION OF LIABILITY, WARRANTY, INDEMNITY AND OTHER CONDITIONS ON THE FOLLOWING PAGE.
Doc. #96, Ex. A at 51. The second page of the proposal contained numerous terms and conditions.3 Plaintiff never received the second page of the proposal.
On October 9, 2008, Sheila McDowell, Plaintiff's Director of Environmental Services, signedthe proposed Agreement and faxed it to Ron Elkins, defendant's Deficiency Specialist. The fax cover sheet stated, Doc. #96, Ex. A at 54. The fax included the first page of the Agreement which McDowell had signed, but not the second page which stated the terms and conditions.
Defendant performed the obstruction inspection on October 16, 2008. At that time, Barry Blackburn, a service fitter for defendant, and Cory Gerner, a janitor for plaintiff, signed another Proposal and Service Agreement.4
Both agreements pertain to the obstruction inspection which defendant performed on October 16, 2008 and contain identical terms, including the following provisions which limited defendant's liability and Plaintiff's remedies.5 In Paragraph 3 plaintiff agreed that defendant was not an insurer, that any insurance coverage would be obtained by plaintiff and that "amounts payable to [defendant] hereunder are based upon the value of the services and the scope of liability set forth in this Agreement and are unrelated to the value of the Customer's property and the property of others located on the premises." Doc. #96, Ex. A at 52 }} 3. Paragraph 3 continued as follows:
In paragraph 10, plaintiff agreed to indemnify defendant against any "losses damages, costs, including expert fees and costs, and expenses including reasonable defense costs, arising from anyand all third party claims for personal injury, death, property damage or economic loss . . . arising in any way from any act or omission of [plaintiff] or [defendant] relating in any way to this Agreement, including but not limited to the Services under this Agreement, whether such claims are based upon contract, warranty, tort (including but not limited to active or passive negligence), strict liability or otherwise . . . ." Id. ¶ 10.
Paragraph 11 obligated plaintiff to name defendant and its officers, agents, subcontractors, suppliers and representatives as "additional insureds" on its general liability and auto liability policies. Id. ¶ 11. Finally, paragraph 17 stipulated that defendant was entitled to recover from plaintiff "reasonable legal fees" incurred in connection with defendant enforcing the Agreement. Id. ¶ 17.
On October 24, 2008, after the obstruction inspection, defendant performed...
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