Water Pollution Control Auth. of Norwalk v. Flowserve U.S. Inc.
| Decision Date | 28 March 2018 |
| Docket Number | 3:14-cv-00549 (VLB) |
| Court | U.S. District Court — District of Connecticut |
| Parties | WATER POLLUTION CONTROL AUTHORITY OF THE CITY OF NORWALK, Plaintiff, v. FLOWSERVE US INC. Defendant, v. GILBANE BUILDING CO. Third-Party Defendant |
Plaintiff Water Pollution Control Authority of the City of Norwalk ("WPCA") brings claims of products liability, breach of contract, and violation of the Connecticut Unfair Trade Practice Act action against Defendant Flowserve US Inc. ("Flowserve"), and also asserts breach of contract against Third-Party Defendant Gilbane Building Co. ("Gilbane"). Flowserve and Gilbane have both moved for summary judgment against WPCA. [Dkts. 119 (Gilbane MSJ against WPCA); 128 (Flowserve MSJ against WPCA).] In addition, Flowserve brought claims against third-party defendant Gilbane asserting breach of contract and seeking indemnification. [Dkt. 30 (Third-Party Complaint).] Flowserve seeks summary judgment in its favor as to its breach of contract claim, and Gilbane seeks summary judgment as to Flowserve's indemnification claim. [Dkt. 123 (Flowserve MSJ against Gilbane).] Gilbane also asserted counterclaims againstFlowserve seeking contribution and negligence, and Flowserve seeks summary judgment as to both. [Dkt. 123 (Flowserve MSJ against Gilbane)]. Finally, Flowserve has moved to exclude two of WPCA's experts. [Dkts. 121 (Motion to Exclude Hodgson); 126 (Motion to Exclude Dickson).] All motions are opposed. For the reasons set forth herein, Flowserve's motions to exclude experts Hodgson and Dickson are GRANTED, Flowserve and Gilbane's motions for summary judgment against WPCA are GRANTED, and Flowserve and Gilbane's motions for summary judgment against each other are found as moot.
II.Factual Background
In 2008, Camp Dresser McKee, Inc. ("CDMS") designed the headworks portion of a wastewater treatment plant upgrade (the "Project") for WPCA. [Dkt. 130-4 at 14, 251.] The headworks included machinery to conduct the first stage of wastewater treatment, including "the preliminary treatment, the screening, the pumping, and grit removal." Id. at 13. When designing the headworks, CDMS began by identifying a pump design which would meet WPCA's operational needs, and then designed the rest of the headworks system upgrade. Id. The pump design CDMS chose was based on the Flowserve MSX series 3 pumps. Id. at 21.
On June 25, 2009, WPCA engaged Gilbane, a construction management company, to serve as Construction Manager for the Project. [Dkt. 120-4 (Agreement) at 2.] Gilbane's contract with WPCA required it to act as WPCA's fiduciary in soliciting bids for subcontractors for the Project. [Dkt. 146-2 at 2.]Among other subcontracts, Gilbane solicited bids for vertical non-clog dry pit submersible pumps. [Dkt. 120-6 (Deposition of Patrick Delany) at 36.]
The pumps were required to meet certain specifications set forth by CDMS. [Dkt. 130-4 at 21.] The design specifications were based on the Flowserve MSX series 3 pumps. Id. Among other specifications, the design specifications required that each pump operate at a capacity of 19 million gallons per day and have motors with a maximum 215 horsepower rating. [Dkt. 130-11.] The specifications did not call for venting. Id.
Flowserve, a pump designer, manufacturer, and supplier, submitted the lowest bid. Id. The bid required Flowserve to manufacture the Pumps, but excluded offloading, storage, handling, installation, temporary dunnage, field piping, field wiring, and interfacing with the control system. [Dkt. 130-15 at 8-9.] Flowserve's bid expressly warranted that the Pumps would comply with CDMS's pump specifications, based on the Flowserve MSX series 3 pump, and would be free from defects in workmanship and material. [Dkt. 130-15 at 16.]
Flowserve also provided a six-year, limited, pro-rated warranty covering a pro-rated portion of any repair or replacement covered by the warranty over six years. Id. The warranty excluded coverage if the Pumps were exposed to:
(1) maintenance, repair, installation, handling, packaging, transportation, storage, operation or use which is improper or otherwise not in compliance with Vendor's instructions; (2) alteration, modification or repair by anyone other than Vendor or those specifically authorized by Vendor, (3) accident, contamination, foreign object damage, abuse, neglect or negligence after shipment to Gilbane Building Company; (4) damage caused by failure of a Vendor supplied Product not under warranty or by any hardware or software not supplied by Vendor; (5) use of counterfeit or replacement parts that are neither manufactured nor approved byVendor for use in the Equipment; or (6) Equipment which is normally consumed in operation or which have normal life inherently shorter than the warranty period including, but not limited to, consumables (e.g. gaskets, o -rings, etc.).
Id. Flowserve also provided, in all capital letters, "THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE." Id. Flowserve also limited its liability, stating:
Flowserve's bid and proposed warranties were discussed at a June 23, 2009 scope review meeting, in which WPCA declined to participate. [Dkt. 130-16 (Scope Review Meeting Minutes).]
WPCA submitted the combined package of all winning bids for Project subcontracts to the Clean Water Fund for approval. [Dkt. 120-38.] In that submittal, Harold Alvord, WPCA's representative, certified that "the information contained above and in any attached statements and materials in support thereofis true and correct to his/her knowledge." Id. Flowserve's limitation of liability and warranty language was in the Clean Water Fund application. [Dkt. 150 at 6-7.]
The Connecticut Department of Environmental Protection ("DEP") authorized Gilbane to award the subcontract for six vertical dry pit pumps (the "Pumps") to Flowserve on October 9, 2009. [Dkt. 120-3 at 4.] The final purchase order, which was executed on December 2, 2010, included the same warranty and limited liability language which was included in its bid and discussed at the scope review meeting. [Dkt. 120-19 at 1-3; Dkt. 125-10 at 1.]
Flowserve shipped the Pumps to the WPCA plant in August 2011. [Dkt. 130-22 at 190.] Multiple contractors were involved in installing the Pumps, including Electrical Energy Systems (which installed power and control wiring), Ferguson Mechanical (which conducted the pipe to Pump fitting), NIC Systems (which installed supervisory control and data acquisition systems), and Aqua Solutions (which certified that the Pumps were satisfactorily installed and tested). [Dkt. 130-3 at 144-46.] Final start-up and testing of all equipment took place on March 12, March 13, and March 15, 2012. [Dkt. 130-3 at 144-145.] By March 22, 2012, installation and testing of the six Pumps was completed. [Dkt. 120-5 at 154-55.] Nothing out of the ordinary was identified, and the Pumps were commissioned after the March 2012 testing. Id. at 155. Another performance test, on April 18, 2012, revealed that Pump 1 was operating at 50% of expected flow. [Dkt. 130-24.] Pump 1 was disassembled, a large wooden block was found and removed, and Pump 1 was returned to full capacity. Id. On April 30, 2012, CDMS and Gilbane accepted the Pumps and purchase order terms. [Dkt. 130-52.]
On July 15, 2012, the plant experienced a heavy storm and ran all six Pumps simultaneously. [Dkt. 130-9 at 121, 126.] The Project specifications did not state that all six pumps should be able to run at the same time, but rather that the system should be able to handle 95 million gallons of sewage per day, which would require five Pumps to run and allow the sixth to serve as a spare. Id. at 126-27. Nevertheless, for 30 minutes during the storm, the Pumps kept up with the flow. [Dkt. 130-32 at 2.] However, the system "blew wastewater out of the top of the grit tanks which [are] immediately downstream of the Pumps" because the grit tanks, which were not manufactured by Flowserve, "couldn't handle the flow" produced by all six Pumps. [Dkt. 130-9 at 126-27; Dkt. 120-19; Dkt. 130-32.] During this event, the variable frequency drives1 ("VFD") for Pumps 2 and 6 overheated and failed. [Dkt. 120-7 at 123.]
Flow Tech, the subcontractor that supplied the VFDs, investigated the VFD failure. [Dkt. 130-14 at 70.] Flow Tech's investigation revealed that, at WCPA's request, the VFD cooling fans had been modified to operate off of thermostats rather than continuously, and that Pump 6 was set to run at 110%. [Dkt. 130-32.] The VFDs were repaired at no cost to WPCA. [Dkt. 120-7 at 123; Dkt. 120-9 at 123.]
On August 4, 2013, OMI, Inc. ("OMI"), a third-party contracted by WPCA to operate and maintain the facility, bled air from Pump 5. [Dkt. 120-10 at 6.] On August 6, 2013, OMI reported that Pump 5 had no influent flow, and was runningbut not pumping.2 [Dkt. 120-10 at 8.] Shawn Jennings, OMI's maintenance manager, testified that when a pump is pumping but not running, that may indicate that the pump is...
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