Tull Bros., Inc. v. Peerless Prods., Inc., Civil Action No. 12–00314–KD–M.

CourtUnited States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
Writing for the CourtKRISTI K. DuBOSE
Citation953 F.Supp.2d 1245
PartiesTULL BROTHERS, INC., Plaintiff, v. PEERLESS PRODUCTS, INC., Defendant.
Docket NumberCivil Action No. 12–00314–KD–M.
Decision Date18 June 2013

953 F.Supp.2d 1245


Civil Action No. 12–00314–KD–M.

United States District Court,
S.D. Alabama,
Southern Division.

June 18, 2013.

[953 F.Supp.2d 1247]

Mark D. Herbert, Michael Jason Clayton, Jones, Walker, Waechter, Poitevent, Carrere & Denegre L.L.P., Jackson, MS, for Plaintiff.

Danny J. Collier, Jr., Sam Gaillard Ladd, Jr., Luther, Collier, Hodges & Cash, LLP, Mobile, AL, for Defendant.


KRISTI K. DuBOSE, District Judge.

This matter came before the Court on June 10, 2013 for a hearing on Defendant's Motion for Summary Judgment (Docs. 68–70),1 Plaintiff's Response (Doc. 74), Defendant's

[953 F.Supp.2d 1248]

Reply (Doc. 77), and the parties' supplemental briefing (Docs. 98–100); Plaintiff's Motion to Strike as to Jones (Docs. 75, 76), Defendant's Response (Doc. 79) and Plaintiff's Reply (Doc. 86); and Defendant's Motion to Strike as to Tull, Beers and design defects (Docs. 80–81), Plaintiff's Response (Doc. 87) and Defendant's Reply (Doc. 90).

I. Findings of Fact2

On May 16, 2012, subcontractor/window installer Plaintiff Tull Brothers, Inc. (“Tull Brothers”) initiated this litigation against window designer/manufacturer Defendant Peerless Products, Inc. (“Peerless”) for negligence, breach of express warranty, indemnity, and breach of contract, relating to the installation of windows for the Engineering and Computer Science Building (“Shelby Hall”) at the University of South Alabama (“South Alabama”) in Mobile, Alabama. (Doc. 1). This litigation is rooted in a contract dispute over allegedly negligently/defectively designed windows with a 1–inch (versus 2–inch) high sub-sill “back leg.”

Specifically, on August 26, 2009, South Alabama hired General Contractor Elkins Constructors, Inc. (“Elkins”) to build Shelby Hall per a Construction Contract Agreement. (Doc. 74–20). On November 25, 2009, Elkins executed a Subcontract Agreement with Tull Brothers, for Tull Brothers to both purchase/supply and install over 800 fixed aluminum windows (for over 200 window openings), an impact curtain wall system, glass and glazing, for Shelby Hall, for the sum of $1,374,000. (Doc. 70–8). Tull Brothers' budget included 1,717 man hours and over $600,000 for the cost of the windows. (Doc. 70–26 at 2).

Tull Brothers, however, did not ultimately purchase and supply the windows to South Alabama. Instead, on October 27, 2010, per an Agency Agreement, Elkins on behalf of South Alabama (Purchaser) purchased the window materials directly from the manufacturer Peerless (Seller), for $623,021.00, per Purchase Order. (Doc. 70–9). The parties agree that this was done “to save on taxes.” While Tull Brothers did not supply the windows, it remained Elkins' installation subcontractor and installed the windows that Peerless manufactured.

Each window opening in Shelby Hall consisted of four (4) Peerless fixed windows. (Doc. 70–10). The plans and specifications for the project required that the windows pass strict wind and water ( i.e., hurricane) resistance tests. (Doc. 74–23). Specifically, as part of the construction contract documents, the installed windows had to comply with an 8 pound per square foot field water test. This test consisted of an independent testing company (in this case Thompson Engineering, Inc. (“Thompson”)) setting up a spray rack outside an installed opening 3 and setting up a vacuum on the interior to pull 8 pounds of pressure; the company would then spray a certain amount of water for 15 minutes while maintaining this pressure to simulate a rain event—any water intrusion through the installed window system meant failure whereas a successful test meant the installed opening met project specifications. ( Id.)

[953 F.Supp.2d 1249]

When the windows were delivered, it was evident to Tull Brothers that the window systems required field assembly (more than anticipated): installing in each opening a vertical 6x6 tube, a horizontal mullion, the receptor system (comprised of sill, jamb and head components) and four (4) fixed windows. (Doc. 70–37 (Dep. F. Tull at 13–14, 110–120)). Specifically, the window sashes were delivered to the site “assembled” by Peerless but the sub-framing and mullion components were delivered in lengths, to be cut, assembled, and sealed, by Tull Brothers, who was then to install and seal the sashes into the sub-framing. (Doc. 70–15 at 11 (Report of C. Matthews & C. Beers)). Peerless' initial written instructions for installation and sealing of the assemblies were limited to the Peerless shop drawings and the general instructions from Peerless' website. ( Id.) See also Doc. 70–29. During the construction process, various site meetings were held and communications were exchanged between Peerless and Tull Brothers wherein Peerless explained upon and modified its initial sealing instructions for the sub-frames and the installation of the sashes onto those sub-frames. (Doc. 70–15 at 11 (Report of C. Matthews & C. Beers)).

As of February 25, 2011, Tull Brothers had discussed an issue with the window system back leg with Peerless (that the 1 inch subsill or back leg was too short). (Doc. 70–34 at 25 (Dep. J. Roach at 112)). On March 7, 2011, Tull began installation of the windows. (Doc. 74–3). On March 29, 2011, Peerless assured Tull Brothers that the height of the 1–inch subsill (back leg) was sufficient. (Doc. 70–37 (Dep. F. Tull at 41–46)).

In April and May 2011, initial rounds of window field testing of the four (4) installed openings revealed problems and resulted in “failures.” (Docs. 70–2 and 70–3). On April 18, 2011, Thompson's test results revealed that a set of four (4) windows failed “by allowing water into the interior portion of the window sill. The window contractor and manufacturer spent time throughout the day breaking down one of the failed window assemblies to determine possible causes for the water entry. Thompson ... personnel continued testing and was not present to fully observe their investigation.” (Doc. 70–2 at 3). These four (4) windows were taken apart, remedial sealants were applied and they were readied for retesting. (Doc. 70–3 at 2).

On May 11, 2011, Thompson's test results revealed that the three (3) of these windows again failed, but at different locations, “by allowing water into the interior portion of the window sill. The window contractor/installers discussed the results of the ... tests and concluded that there was no reason to continue on to the fourth window that had gone through the same remediation attempt as the three (3) previously tested.” (Doc. 70–3 at 3; Doc. 70–23). Stephen Ward & Assoc., Inc. (USA's waterproofing expert providing recommendations to USA's representative SAG Group, as a consultant) noted that while the frame joinery was sealed in the shop by Peerless “this seal does not marry with the field seal at the back leg to the frame. This leaves a very narrow metal-to-metal joint open. When the sub-sill fills up with water as it appears to be doing, this narrow joint acts as a ‘straw’ due to the lower interior pressure during testing (or a storm).” (Doc. 70–23 at 1). “[T]he window manufacturer should respond with direction to the installer. Any remedial work that is deemed required for achieving performance shall be fully documented and is applicable to all similar windows.” ( Id.) SWA also requested a response from Tull Brothers and Peerless on the height of the sub-sill end dams. ( Id.)

[953 F.Supp.2d 1250]

The parties dispute whether the deficiencies resulting in failures with testing were due to defective installation or a defectively designed window system ( cf. Doc. 69 at 7 at ¶ 8–9 and Doc. 74 at 6 at ¶ 8). In part, however, field testing revealed an unsealed joinery orifice that was the responsibility of Peerless. (Doc. 69 at 7 at ¶ 9; Doc. 70–34 (Dep. J. Roach at 122–125)). The orifice issue was eventually resolved. (Doc. 74–15 (Dep. K. Ford at 32–34)). Thompson noted that remedial sealants were applied “by a window manufacturer's representative” and were readied for further retesting. (Doc. 70–4 at 2). Additionally, as of the time of the failed mock-up, it was known that the sealant on the window system subsill (back leg) was a critical sealant joint. (Doc. 70–35 (Dep. B. Smith at 75, 85–86)).

The four (4) windows were taken apart for a second time after failing the rests, remedial sealants were applied by a window manufacturer's representative, and the windows were made ready for the second round of retesting. (Doc. 70–4 at 2).

On May 18, 2011, Thompson's test results (on the same set of four (4) windows) resulted in a score of “passed” and noted that “[a]fter remediation from a window manufacturer's representative ... all four (4) tested windows passed ... by preventing water from entering into the interior portion of the window sill.” (Doc. 70–4 at 2). According to Kevin Ford, Tull Brothers' then glazing-superintendent, these four (4) passed tests showed that the Peerless window system met the contract documents and that Tull Brothers had a good and proper installation of those four (4) windows. (Doc. 70–32 at 17 (Dep. K. Ford at 41)). Barry Smith concluded that these passed tests reflected that Tull Brothers properly installed the windows and the Peerless window system performs to project specifications. (Doc. 70–35 at 24 (Dep. B. Smith at 108)). As such, Tull Brothers—duplicating the steps it took to obtain the passing test score—began full-scale installation of the window systems at Shelby Hall. (Doc. 74–10 (Dep. S. Williams at 47); Doc. 74–12 (Dep. R. Coody, at 56–57, 65, 131, 142)).

Subsequently, Tull Brothers found it very difficult to obtain consistency to pass tests due to a blind seal required at the back leg of the window system. (Doc. 70–37 (Dep. F. Tull at 101, 104)). While Tull Brothers was aware of the blind seal at the back leg as of May 18, 2011, the installers did not realize “the perfection that was going to be required of that sealant until we actually...

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