Pulte Home Corp., Inc. v. Ply Gem Industries, Inc., 89-205-CIV-T-17A.
| Decision Date | 22 September 1992 |
| Docket Number | No. 89-205-CIV-T-17A.,89-205-CIV-T-17A. |
| Citation | 804 F. Supp. 1471 |
| Parties | PULTE HOME CORPORATION, INC., Plaintiff, v. PLY GEM INDUSTRIES, INC., Hoover Treated Wood Products, Inc., Johnson Controls, Inc., Georgia Pacific Corporation, Lowe's Companies, Inc., and its subsidiaries, including Lowe's of Florida, Inc., Lowe's of Georgia, Inc. and Lowe's Investment Corporation, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
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M. Elizabeth Wall, Robert W. Boos, Stephen Wasinger, E. Powell Miller, E. Norma McKenna, Honigman, Miller, Schwartz & Cohn, Tampa, Fla., for Pulte Home Corporation.
Clifford L. Somers, Somers & Associates, James Robinson Lyle, Jr., Lyle & Skipper, P.A., Tampa, Fla., Jonathan I. Blackman, Cleary, Gottlieb, Steen & Hamilton, New York City for Ply Gem Industries.
John Eamon Johnson, Keith Eugene Rounsaville, Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., Tampa, Fla., Richard Kenneth Wray, Keck, Mahin & Cate, Chicago, Ill., for Johnson Controls Inc.
Raymond A. Haas, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Tampa, Fla., for Lowe's Companies, Inc.
Barbara Wrubel, Skadden, Arps, Slate, Meagher & Flom, New York City, Debra M. Kubicsek, Langford, Hill, Mitchell, Trybus & Whalen, P.A., Tampa, Fla., for Georgia Pacific Corp.
John D. Shofi, Shofi, Smith, Hennen, Jenkins, Stanley & Gramovot, P.A., Tampa, Fla., Stephen W. Beik, Raymond Edwin Watts, Jr., Hannah, Marsee, Beik & Voght, P.A., Orlando, Fla., Gita F. Rothschild, Michael A. Tanenbaum, McCarter & English, Newark, N.J., for Hoover Treated Wood Products.
Michael Kent Houtz, Harris, Barrett, Mann & Dew, Tampa, Fla., Read K. McCaffrey, Patton, Boggs & Blow, Baltimore, Md., T. Gregory Slother, T. Gregory Slother, P.C., Griffin, Ga., for Osmose Wood Preservi.
Steven E. Siff, McDermott, Will & Emery, Miami, Fla., for Kaiser Agr.
Thomas John Roehn, Annis, Mitchell, Cockey, Edwards & Roehn, P.A., Tampa, Fla., Robert Dale Klein, Debra S. Block, Wharton, Levin, Ehrmantraut & Klein, Annapolis, Md., for Kaiser Aluminum and Chemical Corp.
Thomas John Roehn, Annis, Mitchell, Cockey, Edwards & Roehn, P.A., Tampa, Fla., for Kaiser Aluminum Properties, Inc.
Steven E. Siff, Martha V. Sackley, McDermott, Will & Emery, Chicago, Ill., for Kaiser-Estech, Maxxam, Inc., Kaiser Agr. Chemicals, Inc., Vigoro Industries and S & P Investments Corp.
Raymond A. Haas, Boehm, Brown, Rigdon, Seacrest & Fischer, P.A., Tampa, Fla., for Lowe's Companies, Inc.
This cause is before the Court on all pending motions, including the following:
FACTUAL BACKGROUND
1. Plaintiff Pulte Home Corporation, Inc. ("PULTE") is a builder of multi-family residential housing units. Pulte is a Michigan corporation with its principal place of business in Michigan.
2. Defendant Hoover Treated Wood Products, Inc., a subsidiary of Ply Gem, is the manufacturer of a chemical used to treat plywood in order to make it fire retardant. ("FRT plywood"). Defendant Hoover is a Delaware corporation.
3. Defendant Ply Gem is a New York corporation. It has one operating division and ten principal operating subsidiaries. On September 23, 1983, Ply Gem established Hoover as a wholly-owned subsidiary and entered into an Assets Purchase Agreement to purchase all the assets of the Wood Preserving Division of Hoover Universal.
4. On March 2, 1985, Hoover Universal entered into a formal agreement under which HVU Acquisition Corp., a wholly-owned subsidiary of Johnson Controls, acquired the stock of Hoover Universal.
5. On May 12, 1985, the original Hoover Universal was merged into HVU Acquisition Corp., which then changed its name to Hoover Universal, Inc. By merger, the new Hoover Universal assumed or succeeded to the liabilities of its predecessor, the original Hoover Universal. Since May 12, 1985, Hoover Universal has been a wholly-owned subsidiary of Johnson Controls, Inc. Hoover Universal has never distributed or manufactured FRT plywood while its stock has been owned by Johnson Controls.
6. Hoover Universal sold its FRT business to Hoover Treated Wood Products pursuant to an Assets Purchase Agreement dated September 28, 1983. Hoover Universal sold substantially all assets of its Wood Preserving Division but retained liability for all claims regarding products shipped before October 1, 1983. Liability for products shipped after September 30, 1983 is the responsibility of Hoover Treated Wood Products.
7. Pulte concedes that Johnson Controls, Inc. is not directly liable to Pulte. Johnson Controls, Inc. is a Wisconsin corporation.
8. Defendant Georgia Pacific was a vendor of FRT plywood. Georgia Pacific is a Georgia corporation.
9. Pulte has installed the FRT plywood for the use of roof sheathing in the roofs of over 1,000 residential homes. In its amended complaint, Pulte avers that the product, FRT plywood, is defective due to the fact it has deteriorated or will prematurely begin to deteriorate, resulting in a compromise of the structural integrity of Pulte constructed homes.
10. Pulte, having discovered the nature of the degradation of the roof sheathing, commenced an ongoing remedial effort to repair and replace the deteriorating roof sheathing.
11. Plaintiff has filed a multi-count Amended Complaint (Dkt. 15) alleging: 1) Breach of Express and Implied Warranties; 2) Breach of Warranties of Future Performance; 3) Breach of Express Warranties and Misrepresentation; 4) Negligence; 5) Strict Liability; and 6) Fraud.
This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the nonmoving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). All doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir. 1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969). Factual disputes preclude summary judgment.
The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), "In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the...
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